Pomo One Marketing, Inc. v. Rajveer Rathore
Claim Number: FA1710001751843
Complainant is Pomo One Marketing, Inc. (“Complainant”), represented by Steven L. Rinehart, Utah, USA. Respondent is Rajveer Rathore (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lendswallet.com>, registered with GoDaddy.com, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 2, 2017; the Forum received payment on October 2, 2017.
On October 4, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lendswallet.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 October 5, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 25, 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 firstname.lastname@example.org. Also on October 5, 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 October 28, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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.
Complainant states that is a wholly-owned economic development arm of the Habematolel Pomo of Upper Lake, a federally-recognized Indian tribe with its reservation near Upper Lake, California. In 2014, it started operating an online platform for pairing individuals across the United States interested in making small-dollar loans with lenders. Complainant registered its LEND WALLET mark in the United States on September 13, 2016.
According to Complainant, the disputed domain name is confusingly similar to the LEND WALLET mark because it fully incorporates the mark, adds the letter “s,” and the “.com” generic top level domain (“gTLD”).
Complaint alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Respondent makes no bona fide offering of goods or services, or a legitimate noncommercial or fair use. Respondent previously used the disputed domain name to redirect users to competing services, but currently the disputed domain name resolves into an inactive site. .
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith. Respondent’s site attempted to disrupt Complainant’s business by offering competing lending services, but currently resolves into a suspended account. Respondent attempted to create confusion as to source, sponsorship, affiliation, or endorsement by using the LEND WALLET mark. Respondent registered the dispute domain name with constructive and/or actual knowledge of the LEND WALLET mark.
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark LEND WALLET dating back to at least September 13, 2016.
The disputed domain name was registered on April 4, 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent used the disputed domain names to resolve to a web containing links to products and services that compete with those of 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 disputed domain name is confusingly similar to the LEND WALLET mark because it fully incorporates the mark, adds the letter “s,” and the “.com” gTLD. The inclusion of a mark in its entirety, adding or deleting letters, and attaching a gTLD are insufficient means to differentiate a disputed domain name from the mark. See Staples, Inc. v. Whois Privacy Shield Services, FA 1617690 (Forum June 5, 2015) (holding that “Changing a single letter (especially when it is the final letter) is a minor enough change to support a finding of confusing similarity under Policy ¶ 4(a)(i).”); see also Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017) (“Addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name and the gTLD is the sole difference.”). Therefore, the Panel finds that the disputed domain name is confusingly similar, in the sense of the Policy, to Complainant’s LEND WALLET mark.
Complainant has not licensed or otherwise authorized Respondent to use the LEND WALLET mark. Respondent is not commonly known by the disputed domain name: in cases where the respondent fails to submit a response, the Panel may refer to WHOIS data to discern the identity of the registrant. See Buff Exteriors, LLC v. gregg buffington, FA 1691787 (Forum Oct. 17, 2016) (holding that, when a respondent fails to submit additional evidence, the relevant WHOIS record may determine the name by which respondent is commonly known). Here, WHOIS identifies the registrant as “Rajveer Rathore.” As such, the Panel finds that Respondent is not commonly known by the disputed domain name.
Respondent did not make a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the domain. Complainant asserts that Respondent previously used the disputed domain name to redirect users to competing lending services. Complainant does not provide evidence to support this allegation. Respondent has not replied. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate.
The Panel notes that the disputed domain name is no longer being used because Respondent’s account has been suspended. The fact that the disputed domain name is no longer being used is an indication that it had not been used for a legitimate purpose.
For the reasons given above, the Panel finds that Respondent did use the disputed domain name to redirect users to competing lending services. This is not a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the domain. See Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum August 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant).
Currently, the disputed domain name resolves into an inactive website. Inactive use does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use. See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services . . . As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.”).
Accordingly, the Panel finds that that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. As already noted, in accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the disputed domain name attempted to disrupt Complainant’s business by offering competing lending services. Offering competing services to disrupt complainant’s business constitutes bad faith use. See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA1501001598657 (Forum February 20, 2015) (“This Panel agrees that Respondent’s use as shown in Exhibits C-D illustrates that Respondent here seeks commercial gain through a likelihood of confusion, as competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv).”). The subsequent deletion of the web pages in question, resulting in an apparent subsequent non-use of the disputed domain name, is not sufficient to avoid a finding of bad faith use. Thus the Panel finds that Respondent registered and is using the disputed domain name in bad faith in the sense of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lendswallet.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 28, 2017
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