Leap Credit, LLC v. Jay Horgan
Claim Number: FA1810001814327
Complainant is Leap Credit, LLC (“Complainant”), represented by Scott A. Minot of Patel Burkhalter Law Group, Georgia, USA. Respondent is Jay Horgan (“Respondent”), New Hampshire, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <leap-credit.com> (“Domain Name”), registered with Name.com, Inc..
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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 31, 2018; the Forum received payment on October 31, 2018.
On October 31, 2018, Name.com, Inc. confirmed by e-mail to the Forum that the <leap-credit.com> Domain Name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 November 1, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 21, 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@leap-credit.com. Also on November 1, 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 28, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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, Leap Credit, LLC, provides credit products and/or services for the daily financial needs of consumers. Complainant has used their marks LEAPCREDIT QUICK FUNDS and LEAP CREDIT, LLC (“LLC mark”) in connection with their services since April 12, 2017 and have registered each of the above marks with the USPTO (e.g. LEAPCREDIT QUICK FUNDS- Reg. No. 5,354,458, registered Dec. 12, 2017; LEAP CREDIT, LLC- Reg. No. 5,355,248, registered Dec. 12, 2017). Respondent’s <leap-credit.com> Domain Name is confusingly similar to Complainant’s marks, as the domain name merely adds a hyphen between the terms “leap” and “credit” and a “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <leap-credit.com> Domain Name. Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use its marks in any manner. Respondent’s use of the Domain Name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Complainant contends that Respondent is using the Domain Name to offer similar and competing services.
Respondent registered and is using the <leap-credit.com> Domain Name in bad faith. It intentionally seeks to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Respondent also uses the Domain Name to offer competing goods and services. Finally, Respondent had actual and constructive notice of Complainant’s rights in its marks prior to registering and subsequent use of the Domain Name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the LLC mark. The Domain Name is confusingly similar to Complainant’s LLC mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the Domain Name and that Respondent registered and has used of the 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).
Complainant has rights in the LLC mark based upon its registration with the USPTO. Registration with USPTO is sufficient to establish rights in a mark pursuant to 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)).
The Panel finds that the <leap-credit.com> Domain Name is confusingly similar to the LLC mark as it consists of the LLC Mark, removing only the indication of business structure “llc”, adding a hyphen and adding the “.com” gTLD. These changes are insufficient to distinguish the Domain Name from the LLC mark under Policy ¶ 4(a)(i). See Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum July 19, 2017) (finding that the addition of punctuation—specifically, a hyphen—did not sufficiently distinguish the disputed domain name from complainant’s registered mark). See 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.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the LLC mark or any other corresponding marks. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “Jay Horgan” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).
At the date of the decision the Domain Name resolved to a website (“Respondent’s website”) offering and promoting credit products in direct competition with Complainant. In circumstances where Respondent has provided no explanation for the use of the Domain Name, or any other evidence establishing any rights to the Domain Name, the use of the Domain Name to sell products and/or services that compete directly with a Complainant’s business is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See 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).”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds on the balance of probabilities that, at the time of registration of the Domain Name, August 14, 2018, Respondent had actual knowledge of the Complainant and its LLC mark. There is no obvious explanation, nor has one been provided, for an entity to register domain name that is a minor variant of the LLC mark and re-direct it to a competing site other than to take advantage of Complainant’s reputation in the LLC Mark. Given the content of the Respondent’s Website it is implausible that at the time of registration Respondent would not have been aware of Complainant, being a direct competitor using an essentially identical mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Name in bad faith to create confusion with Complainant’s LLC Mark for commercial gain by using the confusingly similar Domain Name to resolve to a website offering competing credit products and services. Use of a confusingly similar domain name to directly compete with a complainant may demonstrate 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). Accordingly, and noting the absence of any explanation for Respondent’s conduct or evidence of good faith in the registration or use of the Domain Name, the Panel finds that Respondent registered and uses the Domain Name in bad faith pursuant to Policy ¶¶ 4(b)(iv).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <leap-credit.com> Domain Name be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: December 1, 2018
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