The Credit Pros International Corporation v. Jonathan Grind
Claim Number: FA1704001727122
Complainant is The Credit Pros International Corporation (“Complainant”), represented by Rita C. Chipperson, New Jersey, USA. Respondent is Jonathan Grind (“Respondent”), Sweden.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <the-credit-pros.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 14, 2017; the Forum received payment on April 14, 2017.
On April 18, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <the-credit-pros.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 19, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 9, 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@the-credit-pros.com. Also on April 19, 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 Sandra J. Franklin 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
1. Respondent’s <the-credit-pros.com> domain name is confusingly similar to Complainant’s THE CREDIT PROS mark.
2. Respondent does not have any rights or legitimate interests in the <the-credit-pros.com> domain name.
3. Respondent registered and uses the <the-credit-pros.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The Credit Pros International Corporation, provides credit repairs and restoration services under its THE CREDIT PROS mark to provide and market services. Complainant holds a registration for the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,710,311, registered Mar. 31, 2015).
Respondent registered the <the-credit-pros.com> domain name on May 30, 2016, and uses it to pass itself off as Complainant.
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.”).
The Panel finds that Complainant has rights in its THE CREDIT PROS mark under Policy ¶ 4(a)(i) through its registration with USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <the-credit-pros.com> domain name contains the THE CREDIT PROS mark in its entirety, merely replacing the spaces with hyphens and adding the gTLD “.com.” The omission of spacing in a mark and the addition of a gTLD are insufficient to distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (finding, “Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.”). Likewise, the addition of hyphens to a mark when forming a domain name does not distinguish that domain name. See Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark"). Therefore, the Panel finds that the <the-credit-pros.com> domain name is confusingly similar to Complainant’s THE CREDIT PROS mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 argues that Respondent has no rights or legitimate interests in <the-credit-pros.com> as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the THE CREDIT PROS mark in any way. The WHOIS information of record for the disputed domain name identifies Respondent as Jonathan Grind. The Panel thus finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.); see also 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 further argues that Respondent lacks rights or legitimate interests in the disputed domain name because it fails to use the name for a bona fide offering of goods or services or legitimate noncommercial or fair use. Complainant contends that Respondent’s <the-credit-pros.com> domain name is being used to divert Internet users seeking Complainant to Respondent’s illegitimate website. Past panels have found that such practices do not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003). The Panel finds that Respondent fails to make a bona fide offer of goods or services or a legitimate non-commercial or fair use.
Complainant also argues that the Respondent’s prominent display of Complainant’s THE CREDIT PROS mark on its webpage is evidence of Respondent attempting to pass itself off as the Complainant online. The Panel finds that this is further evidence that the Respondent has no rights or legitimate interests in the disputed domain name. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent registered the disputed domain name to attract Internet users to its own website for commercial gain by creating a likelihood of confusion with Complainant’s mark. The Panel agrees and finds that this is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See eBay, Inc v. Progressive Life Awareness Network, D2000-0068 (WIPO Mar. 16, 2001) (finding bad faith where the respondent is taking advantage of the recognition that eBay has created for its mark and therefore profiting by diverting users seeking the eBay website to Respondent’s site).
Complainant also contends that, in light of the fame and notoriety of Complainant's THE CREDIT PROS mark, it is inconceivable that Respondent could have registered the <the-credit-pros.com> domain name without actual and/or constructive knowledge of Complainant's rights in the mark. Complainant’s argues that its mark is well known throughout the United States where it has thousands of clients and an A+ rating from the Better Business Bureau. The Panel notes that Complainant has been recognized by Inc. Magazine as one of America’s fastest growing companies three years running. The Panel also notes that Respondent is using the disputed domain name specifically to pass itself off as Complainant, and thus agrees that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name, which is additional 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).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <the-credit-pros.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 18, 2017
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