Upstart Network, Inc. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1703001719677
Complainant is Upstart Network, Inc. (“Complainant”), represented by Christopher J. Palermo of Hickman Palermo Becker Bingham LLP, California. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <upstartloansreviews.com>, registered with Internet Domain Service BS Corp.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 1, 2017; the Forum received payment on March 1, 2017.
On March 3, 2017, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <upstartloansreviews.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 March 6, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 27, 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@upstartloansreviews.com. Also on March 6, 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 April 6, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant loans money to individuals using transactions that are managed via the internet. Founded in 2012, Complainant is the first consumer lending platform that provides personal loans using non-traditional variables, like education and employment, to predict creditworthiness. Complainant’s proprietary underwriting model identifies high-quality borrowers despite limited credit experience. Complainant has developed its own algorithms to calculate the likelihood that a borrower will default on a loan. The algorithm includes factors other lenders don't look at so closely, such as area of study and their grades on standardized tests. By combining modern data science and tech-enabled automation, Complainant is able to offer loans at rates lower than can be found elsewhere.
As a result, worthy individuals receive the money they need, and investors who provide capital for loans are better protected against default. Over the years, Complainant has originated over $600 million in loans and have helped more than 50,000 borrowers achieve a better state of financial fitness. With more than $250 million already repaid to investors through more than 500,000 unique payments, the credit model implemented by Complainant continues to improve rapidly, enabling the company to offer better rates to more borrowers.
Complainant offers its loan-related services under the registered trademark UPSTART®. Complxainant also is registrant of the domain name “upstart.com” and offers UPSTART loan services via a website at the domain name “upstart.com.”
Complainant has used UPSTART as a trademark since at least as early as 2012. As a result of a long and extensive use of the mark, the brand UPSTART has come to represent Complainant and its personal loan services. Therefore, Complainant enjoys significant goodwill in the name UPSTART as it relates to personal loans and internet lending services.
Complainant owns federal trademark registrations in the United States for the trademark UPSTART.
A.
The Domain
Name is Identical or Confusingly Similar
to Complainant’s Trademark
“UPSTART”
(UDRP Rule
3(b)(ix)(1); UDRP Policy ¶4(a)(i))
The Domain Name UPSTARTLOANSREVIEWS.COM is confusingly similar to Complainant’s registered mark “UPSTART.”
The second-level domain name “upstartloansreviews” is confusingly similar to the mark UPSTART because it uses the mark UPSTART as the first word in combination with the non- distinctive, highly descriptive terms “loans reviews.” LOANS is descriptive of consumer lending services, and REVIEWS suggests that the registrant’s site provides some form of evaluation of the services. Looking deeper at the content of the website, however, there are no genuine reviews. Instead, the content is for a “click-bait” site.
The idea of the Infringing Site is to use the mark UPSTART to refer to loans, which is what Upstart does. Simply adding non-distinctive wording to the mark UPSTART does not change the meaning or impression of the designation “upstartloansreviews” and thus does not obviate the likelihood of confusion as to source between the two products. It also indicates intent to trade on the reputation of Upstart. The Domain Name plainly has been structured to attract traffic, based on Upstart’s reputation, to a set of junk links that look like they might be associated with Upstart or consumer lending but actually generate click-through revenue for the respondent.
The generic top-level domain “.com” is not relevant in determining whether a domain name is confusingly similar to a trademark. See, e.g., Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum Sept. 27, 2002) (“[I]t is well established principle that generic-top level domains are irrelevant when conducting a Policy ¶4(a)(i) analysis.”).
Therefore, the name “upstartloansreviews” is confusingly similar to the Complainant’s mark. The Panel should resolve similarity in favor of Complainant.
B.
Respondent
has no Rights or Legitimate Interests in the Domain Name
(UDRP Rule
3(b)(ix)(2); UDRP Policy ¶4(a)(ii))
Respondent has no rights or legitimate interests in the Domain Name. The UDRP provides a list of circumstances that can demonstrate a right or legitimate interest in a disputed domain name, enumerated in Paragraph 4 (c) of the Policy. Respondent cannot meet any of these circumstances:
(i) Upon information and belief, Respondent’s use of the Domain Name has no connection with a bona fide offering of goods and services. The services offered via the website at the Domain Name appear to be fake in the sense of calculated to appear legitimate, while serving the true purpose of improperly collecting private consumer information for malicious use. While they purportedly relate to short term installment loans, similar in nature to those provided by Complainant, close inspection of the documents in the website reveals indicators of fraudulent data gathering techniques. For example, Respondent’s “application form” seeks the entry of confidential personal information, but is not a confidential form and does not use secure networking protocols. Furthermore, the content of Respondent’s “Privacy Policy” at http://www.upstartloansreviews.com/privacy-policy.html is filled with nonsensical statements as well as statements actually saying that private information will be improperly disclosed to others. While the “Privacy Policy” contains extensive language, it is not a legitimate legal document. Instead, it is a scam, having the appearance of propriety while actually having malicious substance and crafted to permit misuse of information submitted to the site. Respondent’s web pages are filled with click-bait links that all lead to the home page. Other pages contain incomprehensible content. Numerous pages have typographical errors, such as the page titled “How it Work.” Still others contain text copied from other locations and not corrected; for example, as of the date of this Complaint, the “FAQ” page contained references to the site as “MyPaydayLoanCash” rather than “Upstart Loans Reviews.” The website as a whole does not identify any specific person or legal entity that owns or operates the purported services, and there is no address of business premises. Every page contains a list of “Categories” that are, in fact, seed words intended to place the website higher in internet search engine results, and numerous seed words actually refer to Complainant, including: COMPANIES LIKE UPSTART LOANS; LOAN COMPANIES LIKE UPSTART; LOANS LIKE UPSTART LOANS; LOANS SIMILAR TO UPSTART LOANS; REVIEWS ABOUT UPSTART LOANS; REVIEWS FOR UPSTART LOANS; REVIEWS ON UPSTART LOANS; SUPPORT UPSTART LOANS; UPSTART CONSUMER LOANS; UPSTART LOAN COMPANY; UPSTART LOAN JOBS; UPSTART LOAN REVIEW; UPSTART LOAN RATE; UPSTART LOANS ACCOUNT SIGN IN; UPSTART LOANS COMPANY; and dozens more. A bona fide service provider does not seed its website content with references to another company. Viewed as a whole, all these sorts of errors and questionable content are evidence that the Registrant is not offering a genuine product or service in good faith. Furthermore, Respondent has not been given permission to use the name UPSTART with its loan-based services, either in the Domain Name or on the website at the Domain Name. The fact that Respondent uses the name UPSTART without permission from Complainant to promote and offer loan-related services, for commercial gain, further indicates a lack of a bona fide intent.
(ii) Respondent has not been commonly known by the Domain Name. Upon information and belief, the name “Upstart Loans Reviews” is not known as a company name, including a company name that offers loan-related services in the United States. A business entity search for “Upstart Loans Reviews” in the records of the Secretary of State of Delaware and Nevada did not reveal any result for a company with a business name “Upstart Loans Reviews” registered in any state of the US. A search for “Upstart Loans Reviews” using available internet search engines does not reveal any record for a company with a legitimate business name “Upstart Loans Reviews.” In fact, a search using an internet search engine for “Upstart Loans Reviews” resulted in links to the Complainant’s website and the websites of third-parties all of which relate to and refer to Complainant and its loan services, and not a separate, unrelated to Complainant, entity with a legitimate business name Upstart Loans Reviews. If Respondent has been known by the Domain Name, then an online record relating to that business would exist; none has been found. Furthermore, because Respondent is not commonly known as Upstart Loans Reviews, Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Paragraph 4(c)(ii) of the Policy. [See Compagnie de Saint Gobain v. ComUnion Corp., D20000020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).
(iii) Respondent is not making a legitimate non-commercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. See all allegations set forth above under section (i). Instead, upon information and belief, Respondent uses the Domain Name to offer a website that infringes on Complainant’s rights in the mark UPSTART and trades on goodwill associated with Complainant and its mark. The website at the Domain Name offers loans services called “Upstart Loans Review” using the mark UPSTART, with the descriptive terms set forth above in the listing of “Categories,” without authorization from Complainant. While the website content appears to be fake and malicious, presuming it is true, Registrant is making commercial, non-fair use of Complainant’s mark UPSTART to arrange loans. Moreover, Respondent did not register the domain name for purposes directly related to its corporate name because no legitimate name “Upstart Loans Reviews” exists.
For all the foregoing reasons, the Panel should find that Respondent has no rights or legitimate interests in the Domain Name.
C.
The Domain
Name has been registered
and is being used in Bad Faith
(UDRP
Rule 3(b)(ix)(3); UDRP Policy ¶4(a)(iii))
Respondent registered the Domain Name in bad faith because it attracts Internet users, for commercial gain, to the website at the Domain Name by creating a likelihood of confusion with Complainant’s UPSTART-branded loan services.
The UDRP sets forth a list of circumstances that can demonstrate bad faith in registering a disputed domain name, all enumerated in Paragraph 4 (b) of the Policy. It appears as, under Paragraph 4(b)(iv), Respondent uses the Domain Name in bad faith because Respondent offers, allegedly on a commercial basis, loan-related services using the mark UPSTART. The Domain Name was registered in 2016, years after Complainant registered the mark UPSTART in the United States. Respondent could have investigated rights that existed at the time the Domain Name was registered, and Respondent certainly knew of Complainant’s registered rights in the mark UPSTART when Respondent registered the Domain Name. For example, the seed words in the list of “Categories” on every web page of the site indicates prior knowledge of Complainant. By commercially using the mark UPSTART to provide loan services, Respondent is likely to confuse the public, including current and prospective consumers of Complainant, as to the source or affiliation of the services offered at the website. Moreover, the poor quality of the content of the website at the Domain Name tends to dilute, tarnish or impugn the reputation of Complainant’s trademark. The total content of the website at the Domain Name, as detailed above, suggests Respondent’s bad intentions to profit from the name UPSTART associated with Complainant and its UPSTART -branded services based on potential confusion between the Domain Name and Complainant’s mark UPSTART. Therefore, bad faith exists in Respondent’s actions.
Alternatively, by seeing the mark UPSTART as used by Respondent to offer loan- related services, consumers may be confused into believing that Respondent is affiliated with or endorsed by Complainant, which is not true.
Respondent could have originally selected a different name that does not include UPSTART, but it has chosen not to. Instead, Respondent has selected a name that has an established reputation and high value to attract consumers who are aware of Complainant and its UPSTART loan services. Moreover, Respondent has seeded its web pages with keywords that are calculated to attract browsers that are actually searching for Complainant. Thus, there should be no doubt that Respondent registered and is using the Domain Name in bad faith.
For all these reasons, the Panel should find the bad faith element in favor of Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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 Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(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 and inferences set forth 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) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant provides loans to people and companies based on non-traditional underwriting methods. Complainant has operated under the UPSTART mark since 2012, and has cumulatively lent more than $600 million dollars to more than 50,000 borrowers. Complainant registered the UPSTART mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,544,113, registered June 3, 2014). Registration with the USPTO (or any other governmental authority for that matter) suffices to demonstrate rights in a mark under Policy ¶4(a)(i), even if Respondent is located in another country. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office.). Complainant has established its rights in the mark for the purposes of Policy ¶4(a)(i).
Complainant claims Respondent’s <upstartloansreviews.com> is confusingly similar because it includes Complainant’s entire mark and adds misleading descriptive terms and a gTLD. Adding generic or descriptive terms to a mark to form a domain name does not sufficiently distinguish the domain name from the mark under Policy ¶4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.). A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs. See F.R. Burger & Associates, Inc. v. shanshan lin, FA 1623319 (Forum July 9, 2015) (holding, “Respondent’s <frburger.com> domain name is identical to Complainant’s FRBURGER mark because it differs only by the domain name’s addition of the top-level domain name “.com.”). Respondent uses the entire UPSTART mark and adds the misleadingly descriptive words “loans” and “reviews”, along with the gTLD “.com”. The terms are misleadingly descriptive because Respondent’s web site is not a review site, but a competing web site. The disputed domain name is confusingly similar to Complainant’s mark under Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case 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 has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims Respondent has no rights or legitimate interests in <upstartloansreviews.com> because Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the UPSTART mark. Where there is no response, the WHOIS information and common sense allow the Panel to decide Respondent is not commonly known by the domain name, especially where a privacy service was used. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). According to the WHOIS information, Respondent is “Domain Admin / Whois Privacy Corp.” There is no relationship between Respondent’s name and the disputed domain name. Complainant did the extra step and conducted a search for businesses who use the name “Upstart Loans Reviews.” No such businesses were found. There is no evidence in the record to indicate Complainant authorized Respondent to register a domain name using Complainant’s mark. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). All of this leads to the conclusion Respondent has not been commonly known by the disputed domain name under Policy ¶4(c)(ii).
Complainant claims Respondent does not use the domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Apparently Respondent uses the domain name in a phishing scheme to obtain personal and financial information from users. Phishing schemes do not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use. See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum March 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information). The disputed domain name resolves in a webpage which offers an option to fill out an application for loan services. Respondent uses the disputed domain name in connection with financial services, which could mislead consumers into divulging sensitive information to a fraudulent source. The resolving website includes a fraudulent “Privacy Policy” that details, among other things, that private information will be improperly disclosed to others. Respondent has not demonstrated any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶4(c)(i) or (iii).
Complainant claims Respondent lacks rights and legitimate interests in <upstartloansreviews.com> under Policy ¶¶4(c)(i) and (iii) because each page hosted at the disputed domain name contains a list of categories that are “seed keywords” referring to Complainant. Such a strategy is intended to place the website higher in Internet search results. This attracts Internet users for Respondent’s commercial gain. Such behavior does not indicate a bona fide offering of goods or services, or a legitimate noncommercial or fair use of a disputed domain name. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”). Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶4(c)(i) and 4(c)(iii), respectively.
Finally, Respondent has created no rights simply by registering the domain name using a privacy service. The nominee claims no interest in the domain name. Likewise, the beneficial owner has not publicly associated itself in any way to the domain name (which precludes Respondent from acquiring any secondary rights to the domain name).
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent’s use of the <upstartloansreviews.com> domain name disrupts Complainant’s business by creating a likelihood of confusion. Leading potential users to mistakenly believe that an association between a complainant and a respondent is evidence of bad faith registration and use under Policy ¶4(b)(iv). See Red Bull GmbH v. Gutch, D2000-0766 (WIPO Sept. 21, 2000) (finding that the respondent’s expected use of the domain name <redbull.org> would lead people to believe that the domain name was connected with the complainant, and thus is the equivalent to bad faith use). Respondent’s confusingly similar domain name resolves to a webpage prominently displaying Complainant’s mark. This would obviously lead users to believe an association exists between Complainant and Respondent (when no such relationship exists). Respondent uses the disputed domain name to offer competing loan services. The confusing similarity between Complainant’s mark and the <upstartloansreviews.com> domain name creates confusion in prospective users and demonstrates bad faith registration and use under Policy ¶4(b)(iv).
Complainant claims Respondent registered the disputed domain name with actual knowledge of Complainant’s mark. It seems clear from the use of the domain name that Respondent had actual knowledge of Complainant's rights in the mark, which constitutes bad faith under Policy ¶4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Respondent uses the UPSTART mark in connection with loan services similar to Complainant’s services. This Panel concludes Respondent had actual knowledge of Complainant’s mark, demonstrating bad faith under Policy ¶4(a)(iii).
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <upstartloansreviews.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Tuesday, April 11, 2017
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