DECISION

 

Leap Credit, LLC v. TERRY ALLEN

Claim Number: FA1807001797289

 

PARTIES

Complainant is Leap Credit, LLC (“Complainant”), represented by Scott A. Minot of Patel Burkhalter Law Group, Georgia, USA.  Respondent is TERRY ALLEN

(“Respondent”), New York, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <leapcreditcash.com>, registered with Uniregistrar Corp.

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on July 18, 2018; the Forum received payment on July 18, 2018.

 

On July 19, 2018, Uniregistrar Corp confirmed by e-mail to the Forum that the <leapcreditcash.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 July 23, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 13, 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@leapcreditcash.com.  Also on July 23, 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 August 15, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

1.    Complainant, in conjunction with the LEAP CREDIT mark, offers a wide range of credit products and/or services for the daily financial needs of consumers. Complainant has rights in the LEAP CREDIT mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,354,458, registered Dec. 12, 2017). See Amend. Compl. Ex. A. Respondent’s <leapcreditcash.com> domain name is identical and/or confusingly similar to Complainant’s LEAP CREDIT mark.

2.    Respondent has no rights or legitimate interests in the <leapcreditcash.com> domain name. Respondent is not commonly known by the disputed domain name and attempted to conceal its identity. Additionally, Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent’s disputed domain name resolves to a website that offers credit products and services.

3.    Respondent registered and uses the <leapcreditcash.com> domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name which offers credit related goods and services.

 

B.   Respondent

1.    Respondent did not submit a response.

 

FINDINGS

1.    Respondent’s <leapcreditcash.com> domain name is confusingly similar to Complainant’s LEAP CREDIT mark.

2.    Respondent does not have any rights or legitimate interests in the

<leapcreditcash.com> domain name.

3.    Respondent registered or used the <leapcreditcash.com> domain name in bad faith.

 

DISCUSSION

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.”).

 

Identical and/or Confusingly Similar

Comlainant claims to have rights in the LEAP CREDIT mark based off its trademark registrations with the USPTO. Registering a mark with the USPTO is sufficient to establish rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides its copies of the USPTO registrations for the LEAP CREDIT mark (e.g., Reg. No. 5,354,458, registered Dec. 12, 2017). See Amend. Compl. Ex. A. Therefore, the Panel finds Complainant has sufficiently demonstrated its rights in the LEAP CREDIT mark per Policy ¶ 4(a)(i).

 

Next, Complainant contends Respondent’s <leapcreditcash.com> domain name is identical and/or confusingly similar to Complainant’s LEAP CREDIT mark. The Panel notes Complainant does not make any specific allegations, but it appears Respondent adds a generic term and a generic top-level domain (“gTLD”) to the LEAP CREDIT mark. Adding a generic term and/or a gTLD to a complainant’s mark may not sufficiently differentiate a disputed domain name from the mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Respondent adds the term “cash” and a “.com” gTLD to the LEAP CREDIT mark. As such, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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 Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

Complainant asserts Respondent has no rights or legitimate interests in the <leapcreditcash.com> domain name. Specifically, Complainant contends Respondent is not commonly known by the disputed domain name and attempted to conceal its identity. Where a response is lacking, relevant WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). WHOIS of record for the disputed domain name identifies Respondent as “TERRY ALLEN,” and there does not appear to be any evidence to suggest Respondent was authorized to register the disputed domain name. Further, Complainant provides a screenshot of the disputed domain name’s resolving website and highlights portions where it asserts Respondent attempted to conceal its identity. See Amend. Compl. Ex. C. As such, the Panel agrees with Complainant and find Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Additionally, Complainant claims Respondent is not using the <leapcreditcash.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Complainant argues Respondent uses the disputed domain name’s website to market credit products and/or services. Use of a disputed domain name to offer competing goods or services may indicate a lack of rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii). See Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum Feb. 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 a screenshot of the disputed domain name’s resolving website which includes a Privacy Policy, Terms of Use, and Contact information, all in connection to credit services. See Amend. Compl. Ex. C. Consequently, the Panel agrees with Complainant and finds Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii).

 

Registration and Use in Bad Faith

Complainant claims Respondent registered and uses the <leapcreditcash.com> domain name in bad faith. The Panel notes the <leapcreditcash.com> domain name was registered on May 28, 2018, subsequent to Complainant’s trademark registration with the USPTO.  Specifically, Complainant contends Respondent attracts, for commercial gain, users to the disputed domain name’s website which offers credit related goods and services. Use of a disputed domain name to commercially benefit from user confusion and sell competing goods or services may constitute bad faith under Policy ¶ 4(b)(iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business). Complainant provides a screenshot of the disputed domain name’s resolving website which includes a Privacy Policy, Terms of Use, and Contact information, all in connection to credit services. See Amend. Compl. Ex. C. Therefore, the Panel finds Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <leapcreditcash.com> domain name be TRANSFERRED from Respondent to Complainant.

 

John J. Upchurch, Panelist

August 27, 2018