Oportun, Inc. v. Terry Allen
Claim Number: FA1903001833495
Complainant is Oportun, Inc. (“Complainant”), represented by Ryan Compton of DLA Piper LLP (US), Washington DC, USA. Respondent is Terry Allen (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opportuneloanscash.com> (‘the Domain Name’), registered with Uniregistrar Corp.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 11, 2019; the Forum received payment on March 11, 2019.
On March 12, 2019, Uniregistrar Corp confirmed by e-mail to the Forum that the <opportuneloanscash.com> domain name is registered with Uniregistrar Corp and that Respondent is the current registrant of the name. Uniregistrar Corp has verified that Respondent is bound by the Uniregistrar 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 March 18, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 8, 2019 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@opportuneloanscash.com. Also on March 18, 2019, 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 April 10, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the trademark OPORTUN, registered, inter alia, in the USA for financial services with first use recorded as 2015.
The Domain Name, registered in 2018, is confusingly similar to the Complainant’s OPORTUN mark adding only the letters ‘p’ and ‘e’, the generic terms ‘loans’ and ‘cash’ and the gTLD .com which do not distinguish the Domain Name from the Complainant’s mark.
The Respondent does not have rights or legitimate interests in the Domain Name. The Respondent is not commonly known by the Domain Name and is not authorized by the Complainant to use the OPORTUN mark.
The Domain Name has been used for a site offering competing loan services unconnected with the Complainant. There is no good faith explanation for this use in relation to a typosquatted version of the Complainant’s name. Typosquatting is per se bad faith and disruptive to the Complainant’s business. The Domain Name itself refers to the Complainant’s business loans.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trademark OPORTUN, registered, inter alia, in the USA for financial services with first use recorded as 2015.
The Domain Name, registered in 2018, has been used for a site offering competing loan services unconnected with the 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant's OPORTUN mark (which is registered in, inter alia, the USA for financial services with first use recorded as 2015), additional letters ‘p’ and ‘e’, the generic terms ‘loans’ and ‘cash’ and the gTLD .com which do not prevent confusing similarity between the Domain Name and the Complainant’s mark.
Panels have found that adding letters to the registered mark does not distinguish a domain name from that mark. See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”). The Panel agrees that adding the letters ‘p’ and ‘e’ does not distinguish the Domain Name from the Complainant’s mark.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic terms ‘loans’ and ‘cash’ to the Complainant's mark does not prevent confusing similarity between the Domain Name and the Complainant's trade mark pursuant to the Policy.
The gTLD .com does not serve to distinguish a Domain Name from a Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s OPORTUN registered mark.
As such, the Panel holds that ¶ 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its marks. There is no evidence or reason to suggest the Respondent is commonly known by the 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).
It is clear from the evidence that the Respondent has used the site attached to the Domain Name for competing financial services which are not connected with the Complainant. The usage of a confusingly similar sign to the Complainant’s OPORTUN mark, which has a reputation for financial services, in relation to similar services not connected with the Complainant is not fair as the site does not make it clear that there is no commercial connection with the Complainant. As such, it cannot amount to a bona fide offering of services or a noncommercial legitimate or fair use. See Am. Intl. Group Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services).
The Respondent has not answered this Complaint and has not provided any legitimate reason why it should be able to use a sign confusingly similar to the Complainant’s trademark in this way. As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the Panelist, the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it uses a sign confusingly similar to the Complainant’s well-known name to offer competing financial services without permission. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation or endorsement of the web site in a method likely to disrupt the business of the Complainant. See Asbury Auto Group Inc. v. Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use); see also Allianz of AM. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶¶ 4(b)(iv) and 4(b)(iii). There is no need to consider additional grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <opportuneloanscash.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 11, 2019
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