Chrysalis Holdings, LLC v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1701001714271
Complainant is Chrysalis Holdings, LLC (“Complainant”), represented by Meaghan H. Kent of Venable LLP, Washington D.C., USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <newdayusaloans.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 January 26, 2017; the Forum received payment on January 26, 2017.
On Jan 27, 2017, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <newdayusaloans.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 January 27, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 16, 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, and to postmaster@newdayusaloans.com. Also on January 27, 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 March 1, 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a mortgage lender that provides American military veterans, current service members and their families the opportunity to pursue home ownership with affordable, low-money-down loans and other financial services.
Complainant holds a registration for the mark NEWDAY USA (Registry No. 4,388,826, registered August 20, 2013), which is on file with the United States Patent and Trademark Office (“USPTO”).
Respondent registered the domain name <newdayusaloans.com> on or about July 28, 2016.
The domain name is confusingly similar to Complainant’s NEWDAY USA mark.
Respondent has no rights to or legitimate interests in the domain name.
Respondent has not been commonly known by the domain name.
Complainant has not licensed or otherwise authorized Respondent to use its NEWDAY USA mark.
Respondent is not making a bona fide offering of goods or services by means of, or a legitimate noncommercial or fair use of, the domain name.
Respondent uses the domain name to cause confusion among Internet users as to the possibility of Complainant’s association with it, thus to divert Complainant’s potential customers to its resolving website.
Respondent uses the domain name to attempt to pass itself off as Complainant for commercial gain.
Respondent uses the disputed domain name to attract Internet users seeking payday loans and other forms of borrowing, thus unfairly competing with Complainant’s business.
Respondent knew of Complainant and its rights in the NEWDAY USA mark when it registered the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent has failed to submit a Response in this proceeding which complies with the requirements of the Policy and its accompanying Rules. However, in an e-mail message addressed to the Forum, Respondent has declared that it has stopped using the challenged domain name and deleted it from its host server.
In the same communication, Respondent has also recited its intention not to employ Complainant’s mark in any other domain name.
DISCUSSION
Paragraph 4(a) of the Policy requires that, in the ordinary course, Complainant must prove each of the following in order to obtain from a Panel an order that a domain name be transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the same domain name has been registered and is being used by Respondent in bad faith.
Notwithstanding the foregoing, Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a [UDRP] 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.”
Further, Paragraph 14(b) of the Rules provides that, where a party fails to comply with requirements laid down by the Rules, the Panel may draw such inferences from that failure as it deems appropriate.
DECISION
It appears from the record that Respondent does not contest the material allegations of the Complaint. It further appears that Respondent does not object to Complainant’s request for the transfer to it of the <newdayusaloans.com> domain name as prayed for in the Complaint, so that the parties have tacitly agreed to the transfer of the domain name from Respondent to Complainant without the need for further proceedings. In the exceptional circumstances here presented, we conclude that no worthwhile purpose would be served by a rendition of findings otherwise customary in proceedings of this sort.
Accordingly, it is Ordered that the domain name <newdayusaloans.com> be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 2, 2017
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