Oportun, Inc. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA2004001891452
Complainant is Oportun, Inc. (“Complainant”), represented by Ryan Compton of DLA Piper LLP (US), District of Columbia, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are the following: <opportunefinancier.com>, <opportunecashloan.com> and <opportunefinancially.com>, as well as <opportunitylend.com> and <opportune.com.co>, all registered with Internet Domain Service BS Corp. TLD Registrar Solutions Ltd.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 9, 2020; the Forum received payment on April 9, 2020.
On April 14, 2020; April 17, 2020, Internet Domain Service BS Corp; TLD Registrar Solutions Ltd. confirmed by e-mail to the Forum that the <opportunefinancier.com>, <opportunefinancially.com>, <opportunecashloan.com>, <opportunitylend.com>, and <opportune.com.co> domain names are registered with Internet Domain Service BS Corp; TLD Registrar Solutions Ltd. and that Respondent is the current registrant of the names. Internet Domain Service BS Corp; TLD Registrar Solutions Ltd. has verified that Respondent is bound by the Internet Domain Service BS Corp; TLD Registrar Solutions Ltd. 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 April 20, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 11, 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, as well as to the attention of postmaster@opportunefinancier.com, postmaster@opportunefinancially.com, postmaster@opportunecashloan.com, postmaster@opportunitylend.com, postmaster@opportune.com.co. Also on April 20, 2020, 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 May 18, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Preliminary Issue: Multiple Respondents
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.” Relying upon this provision, Complainant requests that it be permitted to pursue its claims relating to the five identified domain names because all are controlled by the same entity. In support of its request, Complainant alleges that:
a. all the domain names were registered between April and October of 2019;
b. four of the five domain names were registered using the registered Internet Domain BS and employ the same Cloudflare name servers;
c. all of the domain names have a similar verbal structure; and
d. all of the domain names are used in connection with nearly identical websites that purport to offer fast, safe, secure loans under Complainant’s marks.
In light of these assertions, and, having in mind that Respondent does not deny any of them, we conclude that it is in the interests of justice and economy that we grant Complainant’s request. Accordingly, this proceeding will be conducted for all purposes against the single Respondent identified in the caption above.
A. Complainant
Complainant is a leading provider of personal loans and a certified community development financial institution, and much of its business is acquired and conducted online.
Complainant holds registrations for the following marks, which are on file with the United States Patent and Trademark Office (“USPTO”) (OPORTUN: Registry No. 4,999,048, registered July 12, 2016; and OPPORUNITY LENDING: Registry No. 5,320,903, registered October 31, 2017).
Respondent registered the following domain names on the dates indicated:
|
<opportune.com.co> |
Registered: October 13, 2019 |
|
<opportunefinancier.com> |
Registered: October 4, 2019 |
|
<opportunitylend.com> |
Registered: August 23, 2019 |
|
<opportunefinacially.com> |
Registered: October 4, 2019 |
|
<opportunecashloan.com> |
Registered: April 15, 2019 |
The domain names are confusingly similar to one or both of Complainant’s OPORTUN and OPPORTUNITY LENDING marks.
Respondent lacks rights to or legitimate interests in the domain names.
Respondent has not been commonly known by any of the domain names.
Complainant has not authorized Respondent to use its marks in any way.
Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain names.
Instead, Respondent uses the domain names to divert to its own websites unsuspecting Internet users seeking Complainant’s services as a means of fraudulently obtaining and exploiting their sensitive personal information.
Respondent has engaged in a pattern of bad faith registration of domain names.
Each of the domain names is an instance of typo-squatting.
Respondent knew of Complainant’s rights in the marks OPORTUN and OPPORTUNITY LENDING prior to its registration of the domain names.
Respondent registered and uses the domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to one or more service marks in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain names; and
(3) the domain names have been registered and are being used by Respondent 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:
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable claims and inferences set out in the Complaint unless the supporting evidence is manifestly contradictory. See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). But see 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 in the OPORTUN and OPPORTUNITY LENDING service marks sufficient for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the marks with a national trademark authority, the USPTO. See, for example, Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum August 4, 2017):
Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Bahamas). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy¶4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that all of Respondent’s challenged domain names: <opportunefinancier.com>, <opportunefinancially.com>, <opportunitylend.com>, <opportunecashloan.com and <opportune.com.co>, are confusingly similar to one or both of Complainant’s OPORTUN and OPPORTUNITY LENDING service marks.
Each of the domain names incorporates the dominant feature of one of the marks, with the addition of the letters “p” and “e” in the term “opportun,” which does not change its phonetic character, plus, in four cases, the appendage of one or another of various terms describing the nature of Complainant’s business, and, in the fifth instance, the suffix “.com,” which relates to the online aspects of Complainant’s business, and, in all cases, a Top Level Domain (“TLD”), either “.com” or “.co,” the latter being the country code TLD for Columbia, which is frequently employed to stand as a substitute for “company.” These alterations of the marks, made in forming the domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See, for example, Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum August 18, 2015) (finding that the <blankofamerica.com> domain name contained the entire BANK OF AMERICA mark and merely added the generic Top Level Domain (“gTLD”) ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank’).
See also Kurk Wasserman Consulting, L.L.C. v. ming li, FA 1782613 (Forum May 29, 2018) (“Respondent’s <lilashserum.us> domain name is confusingly similar to the LILASH mark as Respondent merely adds the descriptive term “serum” [which identified one aspect of a UDRP complainant’s product line] and the “.us” [country code Top Level Domain, or] ccTLD[,] to the mark.”).
Further see Lucasfilm Entertainment Company Ltd. LLC v George Ring, FA 1673825 (Forum June 7, 2016) (finding that, although a respondent’s domain name <lukasfilm.com> incorporated the LUCASFILM mark of a UDRP complainant and substituted a phonetically identical ‘k’ for the ‘c,’ it was nonetheless confusingly similar to that mark).
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the five domain names here at issue, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain names. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain names that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by any of the contested domain names, and that Complainant has not authorized Respondent to use either of its OPORTUN and OPPORTUNITY LENDING service marks. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Domain Admin / Whois Privacy Corp.,” which does not resemble any of the domain names. On this record, we conclude that Respondent has not been commonly known by the disputed domain names so as to have acquired rights to or legitimate interests in them within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner). See also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without any objection from Respondent, that Respondent uses the contested domain names to divert to its own websites unsuspecting Internet users seeking Complainant’s services as a means of fraudulently obtaining and exploiting their sensitive personal information. This employment is neither a bona fide offering of goods or services by means of the domain names under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of them under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain names as provided in those subsections of the Policy. See, for example, Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum August 16, 2017) (finding that a respondent lacked rights to and legitimate interests in a domain name with which it conducted a fraudulent scheme to procure “Internet users’ personal information”).
The Panel therefore finds that Complainant has adequately satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s employment of the domain names <opportune.com.co>, <opportunefinancier.com>, <opportunefinancially.com>, <opportunecashloan.com> and <opportunitylend.com>, as alleged in the Complaint, disrupts Complainant’s business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in registering and using the domain names. See, for example, Brownell Travel, Inc. v. Troy Haas, FA1589137 (Forum December 20, 2014) (finding that the use of a domain name to commit financial fraud constituted evidence of bad faith registration and use of it under Policy ¶ 4(b)(iii)).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the OPORTUN and OPPORTUNITY LENDING marks when it registered the five challenged domain names. This further demonstrates Respondent’s bad faith in registering them. See, for example, Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge [of a UDRP complainant’s rights in a mark found to be incorporated in a confusingly similar domain name, and therefore a respondent’s bad faith in registering that domain name] through the name used for the domain and the use made of it.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the domain names <opportune.com.co>, <opportunefinancier.com>, <opportunefinancially.com>, <opportunecashloan.com> and <opportunitylend.com> be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: May 20, 2020
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