Plain Green, LLC v. Andy Tang
Claim Number: FA1704001725482
Complainant is Plain Green, LLC (“Complainant”), represented by Peter T. Wakiyama, Pennsylvania, United States. Respondent is Andy Tang (“Respondent”), Florida, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <plaingreenloans-cash.com>, registered with Rebel Ltd.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 6, 2017; the Forum received payment on April 6, 2017.
On April 10, 2017, Rebel Ltd confirmed by e-mail to the Forum that the <plaingreenloans-cash.com> domain name is registered with Rebel Ltd and that Respondent is the current registrant of the name. Rebel Ltd has verified that Respondent is bound by the Rebel Ltd 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 April 17, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 8, 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@plaingreenloans-cash.com. Also on April 17, 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 May 17, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink 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
Complainant registered the PLAIN GREEN mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,214,941, registered Sep. 25, 2012). Respondent’s <plaingreenloans-cash.com> domain name is confusingly similar to Complainant’s mark because Respondent simply removes the space from the PLAIN GREEN mark and adds the generic terms “loans” and “cash,” along with a hyphen and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in <plaingreenloans-cash.com>. Respondent is not commonly known by the PLAIN GREEN mark, nor does Complainant sponsor Respondent. Respondent is not legitimately affiliated with Complainant in any way, nor has Complainant given Respondent permission to use the mark for any purpose. Respondent also does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use because the resolving site for the disputed domain name prominently displays Complainant’s mark and offers competing loan services. Alternatively, Respondent could be using the website to engage in a phishing scheme to obtain personal and financial information from customers seeking Complainant’s services.
Respondent registered and uses the <plaingreenloans-cash.com> in bad faith. Respondent uses the disputed domain name for commercial gain by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website. Further, Respondent engages in cybersquatting, as it has numerous prior UDRP decisions against it for its infringement on other marks. Finally, Respondent must have had actual knowledge of Complainant’s PLAIN GREEN mark because of Complainant’s significant reputation in the industry and because Respondent uses Complainant’s mark and logos to offer competing loan services.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <plaingreenloans-cash.com> domain name.
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 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 and cash advances to consumers via the Internet. Complainant has operated under the mark since 2011. Complainant registered the PLAIN GREEN mark with the USPTO (e.g., Reg. No. 4,214,941, registered Sep. 25, 2012). Registration of a mark with the USPTO sufficiently recognizes a registrant’s rights in a mark. 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.). Therefore, the Panel finds that Complainant has established rights in the mark for the purposes of Policy ¶ 4(a)(i).
Respondent registered and used the <plaingreenloans-cash.com> domain name on July 6, 2012, approximately two and a half months prior to Complainant’s registration of the PLAIN GREEN mark. However, Policy ¶ 4(a)(i) does not require a complainant to own a trademark prior to a respondent’s registration if it can demonstrate it has established common law rights in the mark. See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark). Complainant alleges that it first used the mark in commerce on April 13, 2011 and that it registered its own domain name, <plaingreenloans.com> on March 11, 2011. Complainant’s registration of its own domain name involved a privacy service with the identity of the registrant unknown. Complainant’s unchallenged allegations and evidence establish and the Panel finds that Complainant does hold common law rights in the name for the purposes of Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <plaingreenloans-cash.com> domain name is identical to Complainant’s mark because it simply removes the space from Complainant’s complete mark and adds generic terms, a hyphen, and the gTLD “.com.” Similar changes to marks have not sufficiently distinguished domain names from a complainant’s mark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist 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.); see also Sports Auth. Mich. Inc. v. Batu 5, FA 176541 (Forum Sept. 23, 2003) (“The addition of a hyphen to Complainant's mark does not create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis.”); see also Gianvito Rossi SRL Unipersonale v. david backhumn, FA 1628059 (Forum Aug. 12, 2015) (declaring, “Domain name syntax prohibits spaces in a domain name, so their absence must be disregarded when comparing a mark with a disputed domain name under Policy ¶4(a)(i).”). Complainant contends that the disputed domain name removes the space from the PLAIN GREEN mark and adds the generic terms “loans” and “cash,” along with a hyphen and the gTLD “.com.” Thus, the Panel agrees and finds that the Respondent did not meaningfully change the mark to distinguish the <plaingreenloans-cash.com> domain name from Complainant’s PLAIN GREEN mark.
Complainant has proved this element.
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), and then the burden shifts to Respondent to show it does have 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 contends that Respondent has no rights or legitimate interests in the <plaingreenloans-cash.com> domain name. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS information identifies “Andy Tang” as the registrant. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the PLAIN GREEN mark. Panels may use these assertions as evidence of lacking rights or legitimate interests. 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). Complainant alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the disputed domain name prior to its registration, and Complainant has not given Respondent permission to use the disputed domain name. Accordingly, the Panel agrees that Respondent is not commonly known by the <plaingreenloans-cash.com> domain name under Policy ¶ 4(c)(ii).
Complainant next argues that Respondent also does not use the disputed domain for any bona fide offering of goods or services or a legitimate noncommercial or fair use because it prominently displays Complainant’s mark and design to offer competing services for its own commercial gain. Commercially benefiting from a complainant’s mark can evince a failure to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> 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 resolving site for the disputed domain name appears to display Complainant’s mark and design, and also appears to offer competing loan services. The Panel finds that Respondent has failed to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
Complainant claims that Respondent possibly engages in a phishing scheme to obtain personal and financial information from users. Phishing schemes can evince a failure to provide 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). Complainant contends that Respondent could be using the website to fraudulently obtain personal and financial information from customers seeking Complainant’s services by offering the same services solely to obtain customers’ information. The Panel agrees and finds that Respondent has failed to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
Complainant has proved this element.
Complainant alleges that Respondent engaged in cybersquatting. Cybersquatting can help a complainant evince bad faith under Policy ¶ 4(b)(ii). See Fandango, LLC v. 21562719 Ont Ltd, FA1209001464081 (Forum November 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 contends that Respondent has previously registered numerous domain names that ended up in UDRP arbitration proceedings, all of which include findings of bad faith. Accordingly, the Panel finds that Respondent registered the disputed domain name in bad faith by engaging in cybersquatting.
Complainant next argues that Respondent registered and is using the <plaingreenloans-cash.com> domain name in bad faith by creating a likelihood for confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name to commercially benefit by offering competing services. Commercially benefiting via initial interest confusion can evince bad faith registration and use. See Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum October 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”); see also 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).”). Complainant alleges that Respondent uses the PLAIN GREEN mark in its disputed domain name to attract users seeking Complainant’s loan services, and instead offers competing services on the resolving webpage, disrupting Complainant’s business. The Panel agrees that Respondent attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Complainant claims that Respondent had actual knowledge of Complainant’s mark. Actual knowledge of a complainant’s mark is adequate evidence of 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). Complainant contends that Respondent must have had actual knowledge of the PLAIN GREEN mark because of Complainant’s significant reputation in the industry and because Respondent uses Complainant’s mark and logos to offer competing loan services. The Panel agrees with Complainant and finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <plaingreenloans-cash.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
Dated: May 22, 2017
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