LendingTree, LLC v. Lavonne Burton
Claim Number: FA1708001744603
Complainant is LendingTree, LLC (“Complainant”), represented by Christiane S. Campbell of Duane Morris LLP, Pennsylvania, USA. Respondent is Lavonne Burton (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <merchantlendingtree.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 known conflict in serving as Panelist in this proceeding.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 15, 2017; the Forum received payment on August 15, 2017.
On August 16, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <merchantlendingtree.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 August 16, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 5, 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@merchantlendingtree.com. Also on August 16, 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 September 8, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 is a leading provider of loan-related services. Complainant has used its LENDINGTREE mark in connection with loan-related services since 1998. Complainant registered the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,886,058, registered Sept. 21, 2004). Respondent’s <merchantlendingtree.com> is confusingly similar to Complainants LENDINGTREE mark because it incorporates the mark in its entirety, eliminating spaces, adding the generic term “merchant,” and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interest in <merchantlendingtree.com>. Respondent is not commonly known by the disputed name. Complainant has not authorized or licensed Respondent to use the LENDINGTREE mark. Respondent is not affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <merchantlendingtree.com> resolves to a website offering loan services in direct competition with Complainant under Complainant’s LENDINGTREE mark. Moreover, the disputed domain name attempts to phish for the financial information of users seeking Complainant’s business.
Respondent registered and is using <merchantlendingtree.com> in bad faith. The disputed domain name disrupts Complainant’s business by attracting users to Respondent’s website, presumably for commercial gain, creating confusion as to Respondent’s affiliation with Complainant. Respondent’s <merchantlendingtree.com> attempts to acquire users’ financial information through fraudulent loan applications. Respondent registered <merchantlendingtree.com> with actual knowledge of Complainant’s rights to the LENDINGTREE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, LendingTree, LLC, is a leading provider of loan-related services. Complainant has used its LENDINGTREE mark in connection with loan-related services since 1998. Complainant has rights in the LENDINGTREE mark through registration with the USPTO (e.g., Reg. No. 2,886,058, registered Sept. 21, 2004). Respondent’s <merchantlendingtree.com> is confusingly similar to Complainant’s LENDINGTREE mark.
Respondent, Lavonne Burton, registered <merchantlendingtree.com > on January 27, 2017.
Respondent does not have rights or legitimate interest in <merchantlendingtree.com>. Respondent’s <merchantlendingtree.com> resolves to a website offering loan services in direct competition with Complainant under Complainant’s LENDINGTREE mark. Moreover, the disputed domain name attempts to phish for the financial information of users seeking Complainant’s business.
Respondent registered and is using <merchantlendingtree.com> 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:
(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 has rights in its LENDINGTREE mark through registration with the USPTO. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <merchantlendingtree.com> is identical and confusingly similar to the LENDINGTREE mark because it incorporates the mark in its entirety, eliminating spaces, adding the generic term “merchant,” and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in <merchantlendingtree.com>. Respondent is not commonly known by the disputed domain name. The WHOIS information identifies the Registrant as “Lavonne Burton.” 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).
Respondent lacks a legitimate interest in <merchantlendingtree.com> because the domain fraudulently attempts to obtain the financial information of Complainant’s customers to obtain business loans. Typically, a “[r]espondent’s attempt to ‘phish’ for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).” See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010). Therefore, the use of a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)). HOPE worldwide, Ltd. v. Jin, FA 320379 (Forum Nov. 11, 2004).
Respondent registered and is using <merchantlendingtree.com> in bad faith under Policy ¶ 4(b)(iv). Respondent used the disputed domain name to attract users to Respondent’s website for commercial gain by offering goods and services similar to Complainant under its LENDINGTREE mark. A “[r]espondent’s use of the website to display products similar to [c]omplainant’s, imputes intent to attract Internet users for commercial gain.” Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA 1612750 (Forum May 13, 2015); see also ShipCarsNow, Inc. v. Wet Web Design LLC, FA 1601260 (Forum Feb. 26, 2015) (“Respondent’s use of the domain name to sell competing services shows that Respondent is attempting to commercially benefit from a likelihood of confusion [with] Complainant’s mark, [constituting] bad faith under Policy ¶ 4(b)(iv).”).
Respondent engaged in phishing activities by attempting to acquire the financial information of Complainant’s potential customers. Respondent’s use of a confusingly similar domain name to acquire personal and financial information of Internet users is bad faith registration and use under Policy ¶ 4(a)(iii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015).
Respondent had actual knowledge of Complainant’s LENDINGTREE mark because it offered similar business loan services. Generally, panels have found “actual knowledge through the name used for the domain and the use made of it.” Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014). Therefore, Respondent registered and used the <merchantlendingtree.com> domain name in bad faith. Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Forum Apr. 10, 2006).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <merchantlendingtree.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: September 21, 2017
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