Quicken Loans Inc. v. Surachai Jaidee / FastLoansUSA.com
Claim Number: FA1701001711138
Complainant is Quicken Loans Inc. (“Complainant”), represented by Georges Nahitchevansky of Kilpatrick Townsend & Stockton LLP, United States of America. Respondent is Surachai Jaidee / FastLoansUSA.com (“Respondent”), Thailand.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <quickenpaydayloans.com>, <quickenpaydayloan.com>, and <quickencashadvance.com>, registered with GoDaddy.com, LLC.
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 January 5, 2017; the Forum received payment on January 5, 2017.
On January 6, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <quickenpaydayloans.com>, <quickenpaydayloan.com>, and <quickencashadvance.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 January 10, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 30, 2017, 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, as well as to the attention of postmaster@quickenpaydayloans.com, postmaster@quickenpaydayloan.com, and postmaster@quickencashadvance.com. Also on January 10, 2017, 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 January 11, 2017, Respondent responded to the Forum by e-mail stating that Respondent had “remov[ed] sites that may be causing the problem.”
On February 6, 2017, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a provider of lending services, including online, under the names and marks QUICKEN and QUICKEN LOANS.
Complainant is the sole licensee of the QUICKEN LOANS trademark, and Complainant has rights to employ and protect the QUICKEN LOANS mark.
The QUICKEN LOANS service mark is registered with the United States Patent and Trademark Office (“USPTO”), as Registry No. 2,528,282, registered January 8, 2002.
Complainant is also authorized to employ in its business, and protect in this proceeding, rights in the QUICKEN mark.
The QUICKEN mark is registered with the USPTO as Registry No. 2,572,710, registered May 28, 2002.
Respondent registered the domain name <quickenpaydayloans.com> on or about September 16, 2011, the domain name <quickenpaydayloan.com> on or about November 9, 2011, and the domain name <quickencashadvance.com> on or about December 23, 2011.
The domain names are confusingly similar to either or both the QUICKEN LOANS and QUICKEN marks.
Respondent has not been commonly known by any of the domain names.
Complainant has not given Respondent any license or other authorization to register, own or use any domain name incorporating the QUICKEN or QUICKEN LOANS marks.
Respondent’s use of the domain names does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use.
The domain names have been used by Respondent to promote competing lending businesses.
Respondent has no rights to or legitimate interests in any of the domain names.
Respondent’s employment of the domain names is indicative of a pattern of bad faith registration and use.
Respondent registered and is using the domain names to attract, for commercial gain, Internet users who may be seeking out Complainant and its services.
Respondent knew of Complainant and its rights in the QUICKEN and QUICKEN LOANS marks when it registered the domain names.
The domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a trademark and service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of any of the domain names; and
(3) the same domain names were registered and are 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 or legitimate interests in respect of the domain name; and
iii. 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 will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant and its licensor have rights in the QUICKEN and QUICKEN LOANS marks by reason of the registration of the marks with a national trademark authority, the USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum August 4, 2015) (finding that a UDRP complainant’s USPTO registrations for a mark sufficiently demonstrated its rights in the mark under Policy ¶ 4(a)(i)). See also Stevenson v. Crossley, FA 1028240 (Forum August 22, 2007):
Per the annexed U.S.P.T.O. certificates of registration, … and license agreement …, Complainants have shown that they have rights in the … trademarks, whether as trademark holder, or as a licensee. The Panel concludes that Complainants have established rights to the … mark pursuant to Policy ¶ 4(a)(i).
This is so without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Thailand). 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 is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <quickenpaydayloans.com> and <quickenpaydayloan.com> domain names are confusingly similar to Complainant’s QUICKEN LOANS mark. Each contains the mark in its entirety, save for deletion of the letter “s” in one of them, and, in each of them, omission of the space between its terms, plus the addition of the generic term “payday,” an allusion to an aspect of the lending business, and of the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015), finding that:
Domain name syntax requires [g]TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a [g]TLD must be ignored when performing a Policy ¶4(a)(i) analysis.
See also Kohler Co. v. Curley, FA 890812 (Forum March 5, 2007) (finding confusing similarity where the domain name <kohlerbaths.com> contained a UDRP complainant’s mark in its entirety, adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”).
Similarly, the <quickencashadvance.com> domain name is confusingly similar to Complainant’s QUICKEN mark. The domain name differs from the mark merely by the addition of “cashadvance,” another allusion to an aspect of the lending business, and of the gTLD “.com.” See Gillette Co. v. RFK Assocs., FA 492867 (Forum July 28, 2005) (finding that the additions of the term “batteries,” which described a UDRP complainant’s products, and of the generic Top Level Domain “.com” were insufficient to distinguish a respondent’s <duracellbatteries.com> domain name from the DURACELL mark).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in a disputed 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 (Nat. Arb. 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 (Nat. Arb. 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 out 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 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 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), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name which 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 any of the contested domain names <quickenpaydayloans.com>, <quickenpaydayloan.com> or <quickencashadvance.com>, and that Complainant has not given Respondent a license or other authorization to register, own, or use any domain name incorporating the QUICKEN or QUICKEN LOANS marks. Moreover, the pertinent WHOIS information identifies the registrant of the domain names only as “Surachai Jaidee”/”FastLoansUSA.com,” which does not resemble any of the domain names. On this record, we conclude that Respondent has not been commonly known by the disputed domain names so as to have acquired rights to or legitimate interests in any of them within the purview of Policy ¶ 4(c)(ii). See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum August 28, 2014) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the domain name <guardair.com>, where the relevant WHOIS information identified the registrant of the domain name as “Pablo Palermo”).
See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that a respondent was not commonly known by a disputed domain name, and so failed to show that it had rights to or legitimate interests in that domain name as provided in Policy ¶ 4(c)(ii), where a UDRP complainant alleged that it had not authorized that respondent to employ its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the contested domain names <quickenpaydayloans.com>, <quickenpaydayloan.com> and <quickencashadvance.com> to promote lending services in competition with the business of Complainant. This employment of the domain names is 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).
See General Motors LLC v. MIKE LEE, FA 1659965 (Forum March 10, 2016), finding that:
[U]se of a domain [name that is confusingly similar to the mark of another] to sell products and/or services that compete directly with a [UDRP] 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).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the contested domain names <quickenpaydayloans.com>, <quickenpaydayloan.com> and <quickencashadvance.com>, which we have found to be confusingly similar to Complainant‘s QUICKEN and QUICKEN LOANS marks, in order to promote the marketing of lending services in competition with the business of Complainant is an attempt to profit commercially from the confusion thus caused among Internet users as to the possibility of Complainant’s association with the domain names. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain names. See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015):
The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).
We are also persuaded by the evidence that Respondent knew of Complainant and its rights in the QUICKEN LOANS and QUICKEN marks when it registered the challenged <quickenpaydayloans.com>, <quickenpaydayloan.com> and <quickencashadvance.com> domain names. This too demonstrates Respondent’s bad faith in registering the domain names. See Immigration Equality v. Brent, FA 1103571 (Nat. Arb. Forum January 11, 2008):
That Respondent proceeded to register a domain name identical to, and with prior knowledge of Complainant's mark is sufficient to prove bad faith registration and use under Policy ¶ 4(a)(iii).
For these reasons, the Panel 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 relief shall be GRANTED.
Accordingly, it is Ordered that the domain names <quickenpaydayloans.com>, <quickenpaydayloan.com>, and <quickencashadvance.com> be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: February 9, 2017
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