Plain Green, LLC v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1705001731278
Complainant is Plain Green, LLC (“Complainant”), represented by Peter T. Wakiyama, Pennsylvania, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <plainlendgreen.com>, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 11, 2017; the Forum received payment on May 11, 2017.
On May 15, 2017, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <plainlendgreen.com> 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 May 16, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 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@plainlendgreen.com. Also on May 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 June 12, 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 provides online lending services and has registered the PLAIN GREEN mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,214,941, registered Sept. 25, 2012). Respondent’s <plainlendgreen.com> is confusingly similar to Complainant’s PLAIN GREEN mark because it incorporates both words of the mark in their entirety and adds a term “lend”, which is descriptive of Complainant’s services, along with the generic top-level domain (“gTLD") “.com.”
Respondent has no rights or legitimate interests in the <plainlendgreen.com> domain name. Respondent is neither commonly known by the disputed domain name nor has Complainant authorized Respondent to use its PLAIN GREEN mark. Respondent is not engaging in a bona fide offering of goods or services or a legitimate non-commercial fair use. Instead, Respondent is using the <plainlendgreen.com> domain name to divert unsuspecting consumers seeking Complainant’s website and services to its own webpage, presumably for commercial gain. Respondent misleads diverted consumers by prominently displaying Complainant’s marks on its website presumably for the purpose of inducing the diverted consumers to apply for loans and then selling that information to third parties.
Respondent has registered and is using the <plainlendgreen.com> domain name in bad faith. Respondent had actual knowledge of Complainant’s rights in the PLAIN GREEN mark. Complainant had already developed a significant reputation as a provider of online lending services by the time Respondent registered the disputed domain name. The fact that the resolving webpage for the disputed domain name prominently displays Complainant’s marks and designs, and that Respondent uses the disputed domain name to offer services that directly compete with Complainant’s business, further supports a finding that Respondent had actual knowledge. Additionally, Respondent is using the <plainlendgreen.com> domain name for commercial gain by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Plain Green, LLC, provides online lending services and has registered the PLAIN GREEN mark with the USPTO (e.g. Reg. No. 4,214,941, registered Sept. 25, 2012). Respondent’s <plainlendgreen.com> is confusingly similar to Complainant’s PLAIN GREEN mark.
Respondent, Domain Admin / Whois Privacy Corp., registered the <plainlendgreen.com> domain name on August 25, 2016.
Respondent has no rights or legitimate interests in the <plainlendgreen.com> domain name. Respondent is using the <plainlendgreen.com> domain name to divert unsuspecting consumers seeking Complainant’s website and services to its own webpage, presumably for commercial gain. Respondent prominently displays Complainant’s marks on its website.
Respondent has registered and is using the <plainlendgreen.com> domain name 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 the PLAIN GREEN mark under Policy ¶ 4(a)(i) through registration with the USPTO. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (Registration of a mark with the USPTO is sufficient to establish rights in that mark.).
Respondent’s <plainlendgreen.com> is confusingly similar to Complainant’s PLAIN GREEN mark because it incorporates both words of the mark in their entirety and adds a term “lend”, which is descriptive of Complainant’s services, along with the gTLD “.com.”
Respondent is not commonly known by the <plainlendgreen.com> domain name. Complainant has not authorized Respondent to use its PLAIN GREEN mark. The WHOIS information on record lists “Domain Admin” as the registrant of the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA 1626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name); see also Navistar International Corporation v. N Rahmany, FA 1620789 (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).
Respondent is not using the <plainlendgreen.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent is using the disputed domain name to divert unsuspecting consumers, who are searching for Complainant’s website and services, presumably for commercial gain. The disputed domain name resolves to a website that offers services that are substantially the same as the services offered by Complainant. Respondent prominently displays Complainant’s marks on the website. Using a domain name to divert unsuspecting consumers to a website that prominently displays a complainant’s marks to offer competing services does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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).”).
Respondent uses the <plainlendgreen.com> domain name to create a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(b)(iv). See Red Bull GmbH v. Gutch, D2000-0766 (WIPO Sept. 21, 2000) (finding that the respondent’s expected use of the domain name <redbull.org> would lead people to believe that the domain name was connected with the complainant, and thus is the equivalent to bad faith use).
Respondent registered and uses the <plainlendgreen.com> domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent had actual knowledge of Complainant’s rights in the PLAIN GREEN mark. See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”). Therefore, the Panel finds that the Respondent registered and uses the disputed domain name in bad faith.
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 <plainlendgreen.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: June 26, 2017
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