Braviant Holdings, LLC v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1802001772426
Complainant is Braviant Holdings, LLC (“Complainant”), represented by Danielle I. Mattessich of Merchant & Gould P.C., Minnesota, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <balancecredit.org>, 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 conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 19, 2018; the Forum received payment on February 19, 2018.
On February 20, 2018, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <balancecredit.org> 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 February 20, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 12, 2018 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@balancecredit.org. Also on February 20, 2018, 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 March 16, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant operates a personal loan and lines-of-credit business under the mantel of the BALANCE CREDIT mark.
Complainant holds a registration for the BALANCE CREDIT service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,557,690, registered June 24, 2014.
Respondent registered the domain name <balancecredit.org> on or about August 28, 2016.
The domain name is confusingly similar to Complainant’s BALANCE CREDIT service mark.
Respondent is not licensed or otherwise authorized to use Complainant’s BALANCE CREDIT mark.
Respondent has not been commonly known by the domain name.
Respondent employs the domain name to divert Internet users to the website resolving from it for its commercial gain by passing itself off as Complainant in order to market services competing with those of Complainant.
This is neither a bona fide offering of goods or services by means of the domain name nor a legitimate noncommercial or fair use of it.
Respondent has no rights to or legitimate interests in the domain name.
Respondent knew of Complainant’s rights in the BALANCE CREDIT mark at the time Respondent registered the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is substantively identical and confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the BALANCE CREDIT mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Bahamas). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <balancecredit.org> domain name is confusingly similar to Complainant’s BALANCE CREDIT service mark. The domain name contains the mark in its entirety, with only the deletion of the space between its terms and the addition of a generic Top Level Domain (“gTLD”). These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (ForumJanuary 7, 2001), a panel there concluding the domain name <hannoverre.com> identical to a UDRP complainant’s HANNOVER RE mark, because:
[S]paces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names.
Similarly, see Sea World, Inc. v. JMXTRADE.com, FA 872052 (Forum February 12, 2007) where a panel concluded that the top-level gTLD is merely a functional element required of every domain name, so that the domain name <shamu.org> was identical to the SHAMU mark under a Policy ¶ 4(a)(i) analysis.
Under Policy 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the <balancecredit.org> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <balancecredit.org>
domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the BALANCE CREDIT mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as
“Domain Admin.,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified its registrant only as “Fred Wallace.” See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant contends, without objection from Respondent, that Respondent employs the <balancecredit.org> domain name to divert Internet users to the website resolving from it for its commercial gain by passing itself off as Complainant in order to market services competing with those of Complainant.
This use of the domain name is neither a bona fide offering of goods or services by means of it, nor a legitimate noncommercial or fair use of it, such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in Policy ¶¶ 4(c)(i) and (iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007):
Because respondent in this case is also attempting to pass itself off as complainant, presumably for financial gain, the Panel finds the respondent is not using the … 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 Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the challenged <balancecredit.org> domain name to pass itself off as Complainant for Respondent’s commercial gain as alleged in the Complaint. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017), finding bad faith registration and use of a domain name under Policy ¶ 4(b)(iv) where:
Respondent registered and uses the … domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the BALANCE CREDIT mark when Respondent registered the <balancecredit.org> domain name. This further demonstrates Respondent’s bad faith in registering the domain name. See Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Forum April 10, 2006) (finding bad faith registration of a contested domain name where the circumstances outlined in a UDRP complaint indicated that a respondent knew of a complainant's mark when it registered the domain name). See also Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum September 5, 2007) (finding that a UDRP respondent registered a domain name in bad faith where that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name.")
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <balancecredit.org> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 20, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page