Aspen Financial Solutions, Inc. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1911001870174
Complainant is Aspen Financial Solutions, Inc. ("Complainant"), represented by Bryce J. Maynard of Buchanan Ingersoll & Rooney PC, Virginia, USA. Respondent is Domain Admin / Whois Privacy Corp. ("Respondent"), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aspenfinanceloan.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 7, 2019; the Forum received payment on November 7, 2019.
On November 11, 2019, Internet Domain Service BS Corp confirmed by email to the Forum that the <aspenfinanceloan.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 November 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 5, 2019 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@aspenfinanceloan.com. Also on November 15, 2019, the Written Notice of the Complaint, notifying Respondent of the email 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 December 10, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 direct-to-consumer online lending company. Complainant has used ASPEN FINANCIAL and ASPEN FINANCIAL DIRECT in connection with this business since at least as early as May 2018. Complainant owns a U.S. trademark registration for ASPEN FINANCIAL DIRECT in stylized form, with the words serving as the dominant aspect of the mark:
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Complainant also asserts common-law trademark rights in ASPEN FINANCIAL and ASPEN FINANCIAL DIRECT.
The disputed domain name <aspenfinanceloan.com> was registered in July 2019. The registration is held in the name of Respondent. The domain name is being used for a website entitled “Aspen Financial Direct.com | Payday Loans Up To $3,000.” The website offers (or purports to offer) online lending services. Complainant asserts that it does so in a manner intended to deceive consumers into believing it is Complainant’s official website. Complainant states that Respondent is not known by the disputed domain name and has not been authorized or licensed to use Complainant’s ASPEN FINANCIAL marks or to otherwise associate itself with Complainant.
Complainant contends on the above grounds that the disputed domain name <aspenfinanceloan.com> is confusingly similar to its ASPEN FINANCIAL and ASPEN FINANCIAL DIRECT marks; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) ("Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint").
The disputed domain name <aspenfinanceloan.com> incorporates the most distinctive aspects of Complainant's registered ASPEN FINANCIAL DIRECT mark, omitting the first space, substituting the noun form of "financial," adding the generic term "loan" and omitting the generic term “direct,” and appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Aspen Financial Solutions, Inc. v. Domain Admin / Whois Privacy Corp., FA 1841599 (Forum May 30, 2019) (finding <aspenfinanceloans.com> confusingly similar to ASPEN FINANCIAL DIRECT). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used to pass off as Complainant and promote services that compete directly with those offered by Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Aspen Financial Solutions, Inc. v. Domain Admin / Whois Privacy Corp., FA 1841599, supra (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] 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 or service on [Respondent's] web site or location."
Respondent registered a domain name likely to create confusion with Complainant (using a privacy registration service to conceal its actual identity), and is using it to pass off as Complainant in order to promote directly competing services. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Aspen Financial Solutions, Inc. v. Domain Admin / Whois Privacy Corp., FA 1841599, supra (finding bad faith in similar circumstances). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aspenfinanceloan.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: December 12, 2019
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