Avant, LLC v. Tracy Schutts
Claim Number: FA1810001813864
Complainant is Avant, LLC (“Complainant”), represented by AJ Schumacher of Foley & Lardner LLP, Illinois, USA. Respondent is Tracy Schutts (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <creditavant.net>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Charles A. Kuechenmeister
Complainant submitted a Complaint to the Forum electronically on October 26, 2018; the Forum received payment on October 26, 2018.
On October 26, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <creditavant.net> domain name (the “Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 October 31, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of November 20, 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@creditavant.net. Also on October 31, 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 November 23, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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 is a financial technology company that specializes in online personal loans and other consumer lending products and services. It markets those products and services under the AVANT and AVANTCREDIT marks, which it has registered the United States Patent and Trademark Office (“USPTO”): Reg. No. 4,450,333, registered Dec. 17, 2013 for AVANTCREDIT, and (Reg. No. 5,033,285, registered Aug. 30, 2016 for AVANT. Respondent’s Domain Name is confusingly similar to Complainant’s AVANT mark as it merely adds the descriptive term “credit” along with the “.net” generic top-level domain (“gTLD”). The Domain Name is also confusingly similar to Complainant’s AVANTCREDIT mark as it simply reverses the order of the terms in the mark and adds the “.net” gTLD.
Respondent has no rights or legitimate interests in the Domain Name. Complainant has not permitted or licensed Respondent to use Complainant’s AVANT or AVANTCREDIT marks and Respondent is not commonly known by the Domain Name. Additionally, Respondent does not use the Domain Name for a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the Domain Name to impersonate Complainant and conduct a fraudulent phishing scheme.
Respondent has registered and is using the Domain Name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to its web site and operates a fraudulent phishing scheme using the Domain Name. Finally, Respondent had actual knowledge of Complainant’s rights in its marks prior to registering the Domain Name.
B. Respondent
Respondent did not file a Response in this proceeding.
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 provides that in order to obtain an order cancelling or transferring a domain name, Complainant must prove each of the following three elements:
(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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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.”).
The Panel finds as follows with respect to the matters at issue in this proceeding.
Complainant registered its AVANT mark with the USPTO (Registration No. 5,033,285) on August 30, 2016, and its AVANTCREDIT (Registration No. 4,450,333) on December 17, 2013. See Complaint Annex B-3. Registration of a mark with the USPTO is sufficient to establish a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). 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)).
Respondent’s Domain Name is confusingly similar to Complainant’s AVANT mark as it incorporates the mark in its entirety, merely adding the descriptive term “credit” and the “.net” gTLD. These changes are not sufficient to distinguish the Domain Name from that mark for the purposes of Policy ¶ 4(a)(i). Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.), Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Respondent’s Domain Name is nearly identical to Complainant’s AVANTCREDIT mark as it simply reverses the order of the “Avant” and “Credit” terms in the mark and adds the “.net” gTLD. These changes are not sufficient to distinguish the Domain Name from Complainant’s AVANTCREDIT mark for the purposes of Policy ¶ 4(a)(i). T. Rowe Price Group, Inc. v. Venkateshwara Distributor Private Limited. / HEMANG INFRASRUCTURE PRIVATE LIMITED, FA 1705342 (Forum Jan. 16, 2017) (“Respondent’s <tpricerowe.com> differs from the mark by inverting the words “Rowe” and “price” in the mark. Inverting the words in a mark is not sufficient to overcome a finding of confusing similarity.”), Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.”).
For the reasons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the AVANT and AVANTCREDIT marks, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. 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”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) before any notice to respondent of the dispute, respondent has used or has made demonstrable preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(ii) respondent (as an individual, business or other organization) has been commonly known by the domain name, even if respondent has acquired no trademark or service mark rights; or
(iii) respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) it is not commonly known by the Domain Name, (ii) it is not permitted or licensed to use Complainant’s marks, and (iii) it is not using the Domain Name in connection with a bona fide offering of goods and services or as a legitimate noncommercial or other fair use because the name resolves to a web site that impersonates and passes itself off as the web site of Complainant, and Respondent is also using it in furtherance of a fraudulent phishing scheme. These allegations are supported by competent evidence.
According to the information furnished to Forum by PDR, Ltd. d/b/a PublicDomainRegistry.com, the registrant of the Domain Name is “Tracy Schutts.” This name bears no resemblance to the Domain Name. UDRP panels have consistently held that evidence of a registrant name that is materially different from the domain name at issue is competent evidence that the respondent is not commonly known by the domain name. Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name).
Complainant states that it has never licensed or authorized Respondent to use either of its marks in any way. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights and legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Complaint Annex B-2 consists of excerpts from the web site resolving from the Domain Name. The web site clearly represents itself as being sponsored by Complainant, using its name and describing the financial services it offers. The pages also contain loan application forms which solicit private, personal information (names, addresses, current family annual income, employment information) from anyone who might wish to submit them, thinking they were being submitted to Complainant.
Complaint Annex A-1 consists of pages appearing on a LinkedIn profile created by Respondent, using the Domain Name, which purport to offer employment positions with a company called “Avant Credit.” They consist of a sheet soliciting detailed information about the applicant’s banking arrangements, an application form, a job description, and form of employment agreement. They all display Complainants marks. Respondent attaches these documents to emails sent to potential job applicants. See, Complaint Annex A, Declaration of Shyama Rose.
Using a domain name to pass off as a complainant in order to conduct a fraudulent phishing scheme does not qualify as a bona fide offering of goods and services within the meaning of Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iii). DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”), Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum March 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information).
Complainant has made its prima facie case. On the evidence presented, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
(i) respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of respondent’s documented out-of-pocket costs directly related to the domain name;
(ii) respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that respondent has engaged in a pattern of such conduct;
(iii) respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, Internet users to respondent’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of respondent’s web site or location or of a product of service on respondent’s web site or location.
The evidence of Respondent’s use of the Domain Name discussed above in connection with the rights or legitimate interests analysis also supports a finding of bad faith use and registration. Respondent registered and is using the Domain Name to phish for personal and private information, including specific, detailed information about bank accounts (account and bank routing numbers), from persons who are led to believe they are being considered for employment by Complainant. See, Complaint Annex B-2. The potential for theft and other mischief is obvious. This conduct amounts to attracting, for commercial gain, Internet users to Respondent’s web site by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of his web site and fits clearly within the circumstances articulated by Policy ¶ 4(b)(iv). Xylem Inc. and Xylem IP Holdings LLC 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).”).
Respondent’s fraudulent phishing scheme also qualifies on its own as evidence of bad faith registration and use. The Policy acknowledges that mischief can manifest in many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldwcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005). The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and passing oneself off as a complainant to phish for sensitive private information from others has often been held to evidence bad faith registration and use. Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”).
Finally, it is evident from the close similarity between Complainant’s marks on the one hand and Respondent’s Domain Name, web site and LinkedIn profile on the other that Respondent had actual knowledge of Complainant’s marks on August 30, 2018, when it registered the Domain Name. See, Complaint Annex B-1 for registration date. In light of the open ended, non-exclusive nature of Policy ¶ 4(b), actual knowledge of a complainant’s rights in a mark prior to registering an identical or confusingly similar domain name has often been held to be evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
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 <creditavant.net> Domain Name be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
November 26, 2018
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