Oportun, Inc. v. PATIYAN YAMPRAY
Claim Number: FA1911001872673
Complainant is Oportun, Inc. (“Complainant”), represented by Ryan Compton of DLA Piper LLP (US), District of Columbia, USA. Respondent is PATIYAN YAMPRAY (“Respondent”), New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oportunsoffer.com>, registered with NameCheap, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 22, 2019; the Forum received payment on November 22, 2019.
On November 25, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <oportunsoffer.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 December 3, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 23, 2019 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@oportunsoffer.com. Also on December 3, 2019, 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 December 27, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, Oportun, Inc., is a leading technology-powered provider of personal loans and a certified Community Development Financial Institution. Complainant has rights in the OPORTUN mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,999,048, registered Jul. 12, 2016). Respondent’s <oportunsoffer.com> domain name is confusingly similar to Complainant’s mark as Respondent merely adds the letter “s,” the generic term “offer,” and “the “.com” generic top-level domain (“gTLD”) to Complainant’s mark.
Respondent does not have rights or legitimate interests in the <oportunsoffer.com> domain name. Respondent is not permitted or licensed to use Complainant’s OPORTUN mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the <oportunsoffer.com> domain name to mimic Complainant in order to offer competing products and/or conduct a phishing scheme.
Respondent has registered and uses the <oportunsoffer.com> domain name in bad faith. Respondent is attempting to attract Internet users to its competing website for commercial gain. Additionally, Respondent used a privacy service to conceal its identity. Furthermore, Respondent has engaged in typosquatting. Finally, Respondent had actual knowledge or constructive notice of Complainant’s OPORTUN mark prior to registering the <oportunsoffer.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Oportun, Inc., is a leading technology-powered provider of personal loans and a certified Community Development Financial Institution. Complainant has rights in the OPORTUN mark based upon the registration with the USPTO (e.g., Reg. No. 4,999,048, registered Jul. 12, 2016). Respondent’s <oportunsoffer.com> domain name is confusingly similar to Complainant’s mark.
Respondent registered the <oportunsoffer.com> domain name on March 21, 2019.
Respondent does not have rights or legitimate interests in the <oportunsoffer.com> domain name. Respondent uses the <oportunsoffer.com> domain name to mimic Complainant in order to offer competing products.
Respondent has registered and uses the <oportunsoffer.com> 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; 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”).
Complainant has rights to the OPORTUN mark based upon registration with the USPTO. 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)).
Respondent’s <oportunsoffer.com> domain name is confusingly similar to Complainant’s OPORTUN mark as Respondent misspells the mark and adds a modifier along with a gTLD to the mark.
Respondent has no rights or legitimate interests in the <oportunsoffer.com> domain name. Complainant has not authorized Respondent to use Complainant’s OPORTUN mark. 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), especially where a privacy service has been engaged. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.); 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). Additionally, lack of evidence in the record to indicate that the respondent has been authorized to register a domain name using a complainant’s mark supports a finding that respondent does not have rights or legitimate interests in the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
A privacy service was used by Respondent, but was lifted as a result of this proceeding. The WHOIS information of record identifies registrant as “PATIYAN YAMPRAY.” Therefore, Respondent has not been commonly known by the disputed domain name.
Respondent is not using the <oportunsoffer.com> domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use, because Respondent attempts to impersonate Complainant as part of a fraudulent scheme. Here, Complainant claims Respondent uses the disputed domain name to make unauthorized use of Complainant’s mark in connection with a website that purports to offer online personal loans to consumers, which services are identical to Complainant’s services. Furthermore, Respondent uses an email address associated with the disputed domain name to obtain and exploit sensitive personal information about consumers under the guise of a reputable loan process. Use of an email address associated with the disputed domain name to pass off as a complainant in furtherance of phishing or to offer competing services shows a lack of rights or legitimate interests in the name per Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”); see also 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).”).
Respondent registered and uses the <oportunsoffer.com> domain name in bad faith pursuant Policy ¶¶ 4(b)(iii) and (iv). Specifically, Respondent is disrupting Complainant’s business and diverting users to the disputed domain name to offer competing goods and services. Using a disputed domain name to mislead users and redirect them to a competing website shows bad faith per Policy ¶¶ 4(b)(iii) and (iv). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products); see also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 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.”).
Furthermore, Respondent engages in typosquatting. Misspelling of a complainant’s mark in order to commercially benefit from a confusing similarity between a disputed domain name and the mark shows bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”).
Finally, Respondent had actual knowledge of Complainant’s OPORTUN mark. Therefore, Respondent registered and uses the <oportunsoffer.com> domain in bad faith per Policy ¶ 4(a)(iii). See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to an in competition with Complainant.”).
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 <oportunsoffer.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 10, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page