LendKey Technologies, Inc. v. Michael Parker
Claim Number: FA1707001740915
Complainant is LendKey Technologies, Inc. (“Complainant”), represented by Alyssa M. Worsham of Wilson Sonsini Goodrich & Rosati, California, USA. Respondent is Michael Parker (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lendkeyloans.com>, registered with GoDaddy.com, LLC.
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 July 20, 2017; the Forum received payment on July 20, 2017.
On July 21, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lendkeyloans.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 July 24, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 14, 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@lendkeyloans.com. Also on July 24, 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 August 16, 2017, 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 provides an online loan origination and servicing platform for financial institutions that enables consumers seeking certain types of unsecured loans to obtain financing through Complainant’s official website.
Complainant holds a registration for the LENDKEY service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,477,600, registered February 4, 2014.
Respondent registered the <lendkeyloans.com> domain name on or about October 7, 2016.
The domain name is confusingly similar to Complainant’s LENDKEY mark.
Respondent has not been commonly known by the domain name.
Respondent uses the domain name to compete with Complainant’s business.
Respondent has no rights to or legitimate interests in the domain name.
Respondent registered the domain name with knowledge of Complainant’s LENDKEY mark.
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 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
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 all reasonable allegations and inferences set out 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) (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 LENDKEY service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum August 11, 2015):
There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) .... Due to Complainant’s … USPTO [mark] registration on the principal register …, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <lendkeyloans.com> domain name is confusingly similar to Complainant’s LENDKEY service mark. The domain name contains the mark in its entirety, with only the addition of the generic term “loans,” which is descriptive of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” 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 Trip Network Inc. v. Alviera, FA 914943 (Forum March 27, 2007) (concluding that adding a gTLD to the mark of another in creating a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). This is because every domain name requires a gTLD.
See also Gillette Co. v. RFK Assocs., FA 492867 (Forum July 28, 2005) (finding that adding to a UDRP complainant’s DURACELL mark the term “batteries,” which described certain of that complainant’s products, was insufficient to distinguish a respondent’s <duracellbatteries.com> domain name from that mark under Policy ¶ 4(a)(i)).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the <lendkeyloans.com> 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), 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 <lendkeyloans.com> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the LENDKEY mark in a domain name. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Michael Parker,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that a respondent was not commonly known by disputed domain names, and so failed to show that it had rights to or legitimate interests in those domain names as provided in Policy ¶ 4(c)(ii), where the relevant WHOIS information, as well as the other evidence in the record, gave no indication that that respondent was commonly known by the domain names, and where a UDRP complainant had not authorized that respondent to register a domain name containing its registered mark). See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name, and so failed to demonstrate that it had rights to or legitimate interests in that domain name within the meaning of Policy ¶ 4(c)(ii), where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name registration).
We next observe that the Complaint filed in this proceeding shows, without objection from Respondent, that Respondent uses the <lendkeyloans.com> domain name to lure Internet users to Respondent’s own website that is branded with the LENDKEY mark, by which device Respondent desires to persuade such users to believe that they have accessed a website related to Complainant and its services, and that Respondent uses the domain name in this manner to compete with the business of Complainant. Such an attempt by Respondent to profit by passing itself off as Complainant is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that a respondent’s attempt to pass itself off as a UDRP complainant online, in a blatant unauthorized use of that complainant’s mark was evidence that that respondent had no rights to or legitimate interests in a disputed domain name within the compass of either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
Accordingly, the Panel finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the challenged <lendkeyloans.com> domain name, which is confusingly similar to Complainant’s LENDKEY service mark, to attempt to profit from the confusion thus caused among internet users as to the possibility of Complainant’s association with the domain name. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See Citadel LLC v. Joel Lespinasse, FA1409001579141 (Forum October 15, 2014):
Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.
See also Xylem Inc. 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).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the LENDKEY mark when it registered the <lendkeyloans.com> domain name. This further demonstrates Respondent’s bad faith in registering the domain name. See, for example, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum August 16, 2007) (rejecting a respondent's contention that it did not register a disputed domain name in bad faith where a panel found that that respondent knew of a UDRP complainant's rights in a mark when registering the 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 <lendkeyloans.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 21, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page