Opportunity Financial, LLC v. Theodor Hansen
Claim Number: FA2207002005412
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Janet J. Lee of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Theodor Hansen (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opploansusa.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 conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 24, 2022; the Forum received payment on July 24, 2022.
On July 26, 2022, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <opploansusa.com> domain names 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 1, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 22, 2022, 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@opploansusa.com. Also on August 1, 2022, 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 August 25, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant offers financial services including cash advances and personal short-term installment loans.
Complainant holds a registration for the OPPLOANS service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 5,042,920, registered on September 13, 2016.
Complainant has operated its business online through the domain name <www.opploans.com> since January 13, 2010.
Respondent registered the domain name <opploansusa.com> no earlier than April 25, 2022.
The domain name is confusingly similar to Complainant’s OPPLOANS mark.
Respondent has not been commonly known by the domain name.
Complainant has not licensed or otherwise authorized Respondent to use its OPPLOANS mark in a domain name.
Respondent does not use the domain name for either a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent’s resolving website reveals in fine print that its putative business model does not involve acting as a lender or loan servicer but instead with the aim to collect customer information and transfer that information to third-party lenders.
In fact, Respondent uses its resolving website, presumably in order fraudulently to profit illicitly by accumulating from Internet users and misappropriating such personal and confidential information as an applicant’s name, e-mail address, date of birth, social security number, bank account number, driver’s license number and residence address.
Respondent lacks both rights to and legitimate interests in the domain name.
Respondent registered the domain name with knowledge of Complainant’s rights in the OPPLOANS mark.
Respondent both registered and now uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
By virtue of its registration of the OPPLOANS service mark with a national trademark authority, the USPTO, Complainant has established that it has rights in that mark sufficient to satisfy the requirement of Policy¶4(a)(i) that it demonstrate standing to pursue its claim against Respondent in this proceeding. See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration [for its mark] is sufficient to establish these [Policy¶4(a)(i)] rights ….
Turning to the central question posed by Policy¶4(a)(i), we conclude from a review of the record that Respondent’s <opploansusa.com> domain name is confusingly similar to Complainant’s OPPLOANS mark. The domain name incorporates the mark in its entirety, with only the addition of the geographic reference “USA,” the standard abbreviation for United States of America, plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example,
Abbott Laboratories v. Michael Williams / abbott, FA 1927115 (Forum February 5, 2021):
The addition of … geographic terms to a mark, as well as a gTLD, are insufficient to distinguish a domain name from a mark under Policy¶4(a)(i).
See also Franklin Covey Co. v. franklincoveykorea, FA 1774660 (Forum April 11, 2018) (finding that the domain name <franklincoveykorea.com> was confusingly similar to the FRANKLIN COVEY mark, because “[t]he addition of a geographic term and a gTLD do not negate confusing similarity between a domain name and a mark per Policy ¶4(a)(i).”).
Further see Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy¶4(a)(i) analysis.
This is because every domain name requires a gTLD or other TLD.
Under Policy¶4(a)(ii), Complainant must make out a prima facie showing that Respondent has neither rights to nor legitimate interests in the <opploansusa.com> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See, for example, Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy¶4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the contested <opploansusa.com> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the OPPLOANS mark in a domain name. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Theodor Hansen,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy¶4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner).
We next observe that Complainant asserts, without any objection from Respondent, that Respondent uses the <opploansusa.com> domain name to pass itself off as Complainant online purportedly to market financial services to Internet users for its financial gain and in competition with the business of Complainant, but that Respondent’s resolving website reveals in fine print that its putative business model does not involve acting as a lender or loan servicer but instead to collect customer information and transfer that information to third-party lenders, and that, in fact, Respondent uses its resolving website, presumably in order fraudulently to profit illicitly by accumulating from Internet users and misappropriating such personal and confidential information as an applicant’s name, e-mail address, date of birth, social security number, bank account number, driver’s license number and residence address. This employment is neither a bona fide offering of goods or services by means of the domain name under Policy¶4(c)(i) nor a legitimate noncommercial or fair use of it under Policy¶4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA1785242 (Forum June 5, 2018):
On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a … [fraudulent] … scheme [aimed at obtaining and exploiting the sensitive personal and financial information of unsuspecting Internet users] cannot be described as either 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).
See also Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007):
Because respondent … is … attempting to pass itself off as complainant, presumably for financial gain, the Panel finds the respondent is not using the … domain name for 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).
The Panel therefore finds that Complainant has amply satisfied the proof requirements of Policy¶4(a)(ii).
We are persuaded by the evidence that, as detailed in the Complaint, Respondent employs the challenged <opploansusa.com> domain name to perpetrate a fraud upon unsuspecting Internet users by means of a scheme intended to extract from them, and then to exploit for its illicit profit, their sensitive personal and financial information. The facts before us permit of no other interpretation than that Respondent has thus both registered and now uses the domain name in bad faith as that term is used in Policy¶4(a)(iii). See, for example, Amer. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that a disputed domain name was registered and used in bad faith where a respondent hosted a website that “duplicated [a UDRP] Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the … mark [upon which the domain name was based]”).
See also E*Trade Fin. Holdings, LLC v. John Hidle, FA 1994630 (Forum May 31, 2022):
[C]onfusingly similar… domain names are used to trick their website visitors into submitting personal data to Respondent thereby further showing Respondent’s bad faith under Policy¶4(a)(iii).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <opploansusa.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 26, 2022
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