OPPORTUNITY FINANCIAL LLC v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1710001755845
Complainant is OPPORTUNITY FINANCIAL LLC (“Complainant”), represented by Richard S. Stockton of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opp-loans.net>, registered with Internet Domain Service BS Corp.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 26, 2017; the Forum received payment on October 26, 2017.
On October 30, 2017, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <opp-loans.net> 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 October 31, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 20, 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@opp-loans.net. Also on October 31, 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 November 21, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 operates a website at the URL <opploans.com> that receives substantial traffic from persons seeking information about Opportunity Financial, (doing business as Opploans) and to secure personal loans and lines of credit. Complainant registered the OPPLOANS mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. Sep. 13, 2016, registered 5,042,920). Respondent’s <opp-loans.net> domain name is identical or confusingly similar to Complainant’s mark as it contains Complainant’s mark in its entirety, only adding a hyphen and the generic top-level domain (“gTLD”) “.net.”
Respondent has no rights or legitimate interests in the <opp-loans.net> domain name. Nothing in the record shows that Respondent is commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the disputed domain name redirects users to Respondent’s website, which prominently features Complainant’s OPPLOANS mark and appears to offer competing financial loan and credit line services.
Respondent registered and uses the <opp-loans.net> domain name in bad faith. Respondent’s webpage reachable through the disputed domain name prominently features Complainant’s OPPLOANS mark, while offering competing services, which disrupts Complainant’s business. Further, Respondent is able to generate web traffic, and in turn realize a commercial gain, through the use of a domain name which is confusingly similar to Complainant’s OPPLOANS mark. Finally, Respondent’s registration of a domain name that is confusingly similar to the OPPLOANS mark, in spite of Respondent’s actual or constructive knowledge of Complainant’s rights in the mark, further evinces bad faith registration and use.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Opportunity Financial LLC, of Chicago, IL, USA, owns the domestic registration for the mark OPPLOANS, which it has used continuously since at least as early as 2016, in connection with its provision of financial services such as providing personal loans and lines of credit. Complainant also claims common law rights in the mark dating back to 2010.
Respondent is Domain Admin / Whois Privacy Corp., of Nassua, Bahamas. Respondent’s registrar’s address is listed as the same. The Panel notes that Respondent registered the <opp-loans.net> domain name on or about May 5, 2017.
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 registered the OPPLOANS mark with the USPTO (e.g. Reg. No. Sep. 13, 2016, registered 5,042,920). Panels have found that registration of a mark with the USPTO sufficiently confers a complainant rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). The Panel here finds that Complainant has established rights in the OPPLOANS mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <opp-loans.net> domain name is identical or confusingly similar to Complainant’s mark as it contains Complainant’s mark in its entirety, only adding a hyphen and the gTLD “.net.” Prior decisions have found that similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See 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 Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel here finds that the <opp-loans.net> domain name is confusingly similar to the OPPLOANS mark under Policy ¶4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
Complainant has proven this element.
The Panel recognizes that 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), 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). Complainant has met this burden.
Complainant contends that Respondent has no rights or legitimate interests in the <opp-loans.net> 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 in the present case identifies “Domain Admin / Whois Privacy Corp.” as the registrant. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the OPPLOANS mark. Previous panels have used similar assertions as evidence of a respondent 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 asserts 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. The Panel here finds that Respondent is not commonly known by the <opp-loans.net> domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent uses the disputed domain name to offer financial loan services in direct competition with Complainant. Using a confusingly similar domain name that resolves in a webpage that directly competes with Complainant generally fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum February 3, 2016) (finding that Complainant provides freelance talent services, and that Respondent competes with Complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use). Complainant provides evidence of Respondent’s alleged competing use, which tends to confirm Complainant’s claims by illustrating boxes inquiring into the user’s loan desires. The Panel here finds that Respondent offers competing services, failing to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the <opp-loans.net> domain name per Policy ¶¶ 4(c)(i) & (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
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.
Complainant has proven this element.
Complainant argues that Respondent registered and uses the <opp-loans.net> domain name in bad faith by disrupting Complainant’s business and creating a likelihood of confusion to generate web traffic, and in turn realize a commercial gain, through the use of a confusingly similar domain name which offers competing loan services. Using a disputed domain name that disrupts a complainant’s business and trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); 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, as noted previously, provides evidence of Respondent’s resolving webpage, which contains places for users to input information to apply for a loan. The Panel here finds that Respondent’s bad faith registration and use disrupts Complainant’s business. Further, the Panel finds Respondent attempted to commercially benefit from Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
Complainant has proven this element.
DECISION
As Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <opp-loans.net> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: December 5, 2017
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