Opportunity Financial, LLC v. Super Privacy Service LTD c/o Dynadot
Claim Number: FA1912001874600
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Liz Brodzinski of Banner & Witcoff, Ltd., United States. Respondent is Super Privacy Service LTD c/o Dynadot (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain name at issue are <opploansvip.com> and <oppsloansvip.com>, registered with Dynadot, LLC.
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.
Petter Rindforth as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 11, 2019; the Forum received payment on December 11, 2019.
On December 13, 2019, Dynadot, LLC confirmed by e-mail to the Forum that the <opploansvip.com> and <oppsloansvip.com> domain names are registered with Dynadot, LLC and that Respondent is the current registrant of the names. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 17, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 6, 2020 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@opploansvip.com, postmaster@oppsloansvip.com. Also on December 17, 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 January 10, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Petter Rindforth 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.
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant contends that the true registrants of the Infringing Domains cannot currently be ascertained due to the privacy block on the current WHOIS record and masked IP addresses. However, based on the information available the Infringing Domains both appear to have the same IP address, same registrar, registrant, proxy service, and hosting provider. The Panel agrees with the Complainant, that there are a number of identical technical data that clearly indicates that both disputed domain names are controlled by the same person or entity, including also the fact that they were registered within only 5 days in between. Therefore, the Panel finds that Complainant has sufficiently presented evidence demonstrating that the listed entities are jointly controlled. The Panel will hereafter refer to the owner/s of the disputed domain names as “the Respondent” in singular.
A. Complainant
The Complainant is a financial services company that provides personal short-term installment loans. Complainant has rights in the OPPLOANS trademark through its registration of the trademark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,042,920, registered Sep. 13, 2016). Respondent’s <opploansvip.com> and <oppsloansvip.com> domain names are identical or confusingly similar to Complainant’s OPPLOANS trademark. Respondent incorporates Complainant’s OPPLOANS trademark in its entirety and adds the generic term “VIP” and the generic top-level domain (“gTLD”) “.com.” Respondent also adds an additional “s” in the <oppsloansvip.com> domain name.
Respondent has no rights or legitimate interests in the <opploansvip.com> and <oppsloansvip.com> domain names as Respondent is not commonly known by the disputed domain names nor has Complainant authorized Respondent to use the OPPLOANS trademark in anyway. 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 disputed domain names to redirect users to Respondent’s website that directly competes with Complainant’s business.
Respondent registered and uses the disputed domain names <opploansvip.com> and <oppsloansvip.com> in bad faith as Respondent’s domain names resolve to a webpage that displays Complainant’s trademark in an attempt to pass off as the Complainant for commercial gain. Finally, Respondent had actual knowledge of Complainant’s rights in the OPPLOANS trademark prior to the registration of the disputed domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the following U.S. trademark registration:
No. 5,042,920 OPPLOANS (word), registered September 13, 2016 for services in class 36.
Respondent registered the disputed domain name <opploanvip.com> on October 24, 2019, and the disputed domain name <oppsloanvip.com> on October 30, 2019.
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”).
The Complainant claims to have rights in the OPPLOANS trademark through its registration with the USPTO. Registration of a trademark with the USPTO is sufficient to establish rights in a trademark per Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Here, Complainant has provided the Panel with a copy of its USPTO registration for the OPPLOANS trademark (e.g., Reg. No. 5,042,920, registered Sep. 13, 2016). Therefore, the Panel finds that Complainant has adequately shown rights in the OPPLOANS trademark per Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <opploansvip.com> and <oppsloansvip.com> domain names are identical or confusingly similar to Complainant’s OPPLOANS trademark. Registration of a domain name that contains a trademark and adds a generic term and a gTLD does not distinguish the domain name from the trademark per Policy ¶ 4(a)(i). See Starbucks Corporation d/b/a Starbucks Coffee Company v. Waseem A Ali / Micron Web Services, FA 1785616 (Forum June 8, 2018) (finding the <starbucksreal.com> domain name to be confusingly similar to the STARBUCKS mark, as “the addition of the generic term ‘real’ to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy.”); see also 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. Likewise, the absence of spaces must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits them.”). Additionally, misspelling of a complainant’s trademark, either by adding or removing letters may not sufficiently mitigate any confusing similarity between a disputed domain name and trademark under Policy ¶ 4(a)(i). See Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002) (“The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.”) Here, Complainant argues that Respondent incorporates Complainant’s OPPLOANS trademark in its entirety and adds the generic term “VIP” and the “.com” gTLD. Complainant further argues that Respondent adds an additional “s” in the <oppsloansvip> domain name. Therefore, the Panel finds that Respondent’s <opploansvip.com> and <oppsloansvip.com> domain names are confusingly similar to Complainant’s OPPLOANS trademark per Policy ¶ 4(a)(i).
Once the Complainant makes a prima facie case in support of its allegations in respect of the second element of the Policy, the burden shifts to the Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). 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”).
The Complainant argues that Respondent lacks rights or legitimate interest in the <opploansvip.com> and <oppsloansvip.com> domain names as Respondent is not commonly known by the disputed domain names, nor has Respondent been given license or consent to use the Complainant’s OPPLOANS trademark or register domain names using Complainant’s trademark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s trademark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain names lists the registrant as “Super Privacy Service LTD c/o Dynadot” and there is no other evidence to suggest that Respondent was authorized to use the OPPLOANS trademark or was commonly known by the disputed domain names. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
In addition, the Complainant argues that Respondent uses the <opploansvip.com> and <oppsloansvip.com> domain names to redirect users to Respondent’s competing website. Use of a disputed domain name to offer competing products and services may not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use of the name under Policy ¶¶ 4(c)(i) & (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).”). Complainant argues that Respondent references Complainant’s trademark at the top of the webpage and promotes and offers to sell personal loans and cash advances that compete with Complainant’s financial services The Panel finds that Respondent’s use of the <opploansvip.com> and <oppsloansvip.com> domain names to offer competing services is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) & (iii).
Complainant argues that Respondent registered and uses the <opploansvip.com> and <oppsloansvip.com> domain names in bad faith as Respondent’s domain names resolve to a webpage that displays Complainant’s trademark in an attempt to pass off as Complainant or as being affiliated with Complainant. Use of a disputed domain name to resolve to a webpage that displays a complainant’s trademark and similar services may be evidence of bad faith per 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). Here, Complainant has provided screenshots of Respondent’s disputed domain names that clearly show Complainant’s OPPLOANS trademark in addition to offering similar services that Complainant is known for. Therefore, the Panel finds that Respondent indeed has registered and used the disputed domain names in bad faith per Policy ¶ 4(b)(iv).
Complainant contends that Respondent had actual knowledge of Complainant’s rights in the OPPLOANS trademark prior to registration of the <opploansvip.com> and <oppsloansvip.com> domain names. The Panel disregard arguments of bad faith based on constructive notice as UDRP case precedent declines to find bad faith as a result of constructive knowledge. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). The Panel choose to determine whether Respondent had actual knowledge of Complainant's rights in the trademark prior to registering the disputed domain names as actual knowledge can adequately demonstrate bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). To support this assertion, Complainant points to its trademark registrations along with the fact that Respondent impersonates Complainant to offer competing services. Based on the use, the Panel determine the Respondent did have actual knowledge of Complainant’s right in its trademark, which support a finding of bad faith under 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 <opploansvip.com> and <oppsloansvip.com> domain names be TRANSFERRED from Respondent to Complainant.
Petter Rindforth, Panelist
Dated: January 16, 2020
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