Clean Slate Credit Solutions v. Jake Rustenhoven
Claim Number: FA2012001924095
Complainant is Clean Slate Credit Solutions (“Complainant”), represented by Delisa N. Purchase, District of Columbia, USA. Respondent is Jake Rustenhoven (“Respondent”), Iowa, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gotcredit.com> (the “disputed domain name”), registered with NameCheap, Inc.
The undersigned certify that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding.
Charles Kuechenmeister and Lynda Braun as Panelists and David S. Safran as Chair.
Complainant submitted a Complaint to the Forum electronically on December 7, 2020; the Forum received payment on December 7, 2020.
On December 8, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <gotcredit.com> disputed 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 15, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 4, 2021 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 firstname.lastname@example.org. Also on December 15, 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.
A timely Response was received and determined to be complete on December 21, 2020.
Additional submissions were submitted by both parties, Complainant on December 28, 2020, and Respondent on December 29 and 30, 2020.
On December 28, 2020, pursuant to Complainant's request to have the dispute decided by a three-member Panel, the Forum appointed Charles Kuechenmeister and Lynda Braun as Panelists and David S. Safran as Chair.
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.
Complainant requests that the disputed domain name be transferred from Respondent to Complainant.
Complainant does not give a description of its business or services; however, the evidence indicates “Clean Slate Credit Solutions” is in the business of providing consumer credit repair services. Complainant has rights in the GOT CREDIT? mark through its registration with the United States Patent and Trademark Office (“USPTO”). (e.g. Reg. 6,047,428, registered May 5, 2020). See Compl. Ex. A. Respondent’s <gotcredit.com> disputed domain name is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety, removes the question mark, and adds the “.com” generic Top-Level Domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <gotcredit.com> disputed domain name. Respondent is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead attempts to divert internet users to the disputed domain name’s resolving website, where Respondent hosts advertisements and uses the disputed domain name for a use unrelated to credit services, namely surveys.
Respondent registered and uses the disputed domain name in bad faith. Respondent attracts internet users for commercial gain to the disputed domain name’s resolving website, where it hosts advertisements and surveys.
Respondent is an online marketer and blogger. Respondent registered the <gotcredit.com> domain name twelve years before Complainant registered its GOT CREDIT? mark, and began using the disputed domain name eight years before Complainant’s registration of the mark.
Respondent has rights and legitimate interests in the <gotcredit.com> disputed domain name. Respondent’s registration and use of the disputed domain predates Complainant’s rights in the GOT CREDIT? mark. The terms of the disputed domain name are generic and do not require the disputed domain name to be used solely for consumer credit repair or checking services. Complainant, having recently realized the value of the disputed domain name, is attempting to strip Respondent of its many years of use and value acquired in the disputed domain name by hijacking the disputed domain name.
Respondent did not register and does not use the <gotcredit.com> disputed domain name in bad faith. Respondent’s registration and use of the disputed domain name predate Complainant’s first use or registration of the GOT CREDIT? mark. Complainant is engaging in reverse domain name hijacking.
C. Additional Submissions
Complainant’s Additional Submission
Complainant has not engaged in reverse domain hijacking. Respondent wrongfully assumes that Complainant knew the disputed domain name had been in use many years before the mark was obtained. Since 2017, Complainant built a business and a brand around the phrase ‘got credit?’, and obtained the trademark for ‘got credit?’ to protect his interests and prevent consumer confusion. Neither Complainant nor his attorney made any threats or attempted to intimidate or harass the Respondent. Furthermore, Respondent has not shown that Complainant’s actions met the elements to prove a claim of reverse domain hijacking.
Respondent’s Additional Submissions
Respondent acquired <gotcredit.com> in 2008 and began using as an active blog in 2011, nearly 9 years before the trademark in question was registered. Complainant’s attorney was informed of this in the email exchange shown in the evidence file. The Complainant had this knowledge, yet proceeded with this UDRP complaint anyway.
Complainant’s trademark in question “got credit?” is only valid specifically in the credit repair industry. Respondent could use the “got credit” phrase for a totally different purpose, and it would be perfectly legal and ethical, as long as it wasn’t directly related to “credit repair”. Similarly, it’s certainly legal and ethical to use <gotcredit.com> for any purpose unrelated to “credit repair”, especially given that the acquisition and use by Respondent predates the trademark by several years.
The new evidence provided by the Complainant still fails to prove bad faith, as Respondent has already stated that he intended to use <gotcredit.com> in the “credit education” capacity. This intention originated in 2008 when Respondent acquired the domain, and came into fruition in 2011 when he began using it as a website dedicated to reviewing credit monitoring services, and providing consumers free and useful information on how to build good credit.
Respondent was completely unaware of Jose Rodriguez (aka “The Credit Dude”), Clean Slate Credit Solutions business, his newly registered domain <gotcredit.biz>, and related trademark until 10/31/2020, when his attorney, Delisa Purchase, sent a “Cease And Desist” via email and began an email exchange, as the evidence file shows.
Complainant’s attorney’s own words in a message sent to Respondent presents strong evidence that the Complainant is a “trademark bully” and is currently abusing the UDRP system in an effort to get a domain name he has no legal rights to.
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.
Since the Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(ii) and ¶ 4(a)(iii) for the reasons indicated below, the Panel declines to analyze this element of the Policy. See Netsertive, Inc. v. Ryan Howard / Howard Technologies, Ltd., FA 1721637 (Forum Apr. 17, 2017) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary).
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 disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show that it has 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.”). Here, the Panel holds that Complainant has not made out a prima facie case and concludes that Respondent has shown that it has rights or legitimate interests in respect of the disputed domain name.
The terms “got credit” in the GOTCREDIT? mark are generic and are common, dictionary terms that have common meanings apart from any trademark value the Complainant may have acquired through its use in commerce. The registration of domain names that contain common words is permissible on a first-come, first served basis, and such registration also establishes Respondent’s legitimate interests, provided the domain was not registered with a trademark in mind. See National Gardening Association, Inc. v. CK Ventures, FA 1294457 (Forum Feb. 16, 2010) (“common words and descriptive terms are legitimately subject to registration as domain names on a first come, first-served basis”). This rule applies to the registration of generic, common, descriptive and dictionary terms, whether in English or in any other language, and such use establishes Respondent’s rights or legitimate interests in the domain name at issue. See Vendita Technology Group, LLC v. M. Stenzel, FA1308001514398 (Forum Sept. 30, 2013) (complaint denied; the word “vendita” is a common dictionary word meaning “sale” in Italian and thus, Respondent has rights or legitimate interests in <vendita.com>); see also Investigo v. Domain Admin, FA854793 (Forum Sept. 7, 2019). Thus, the Panel finds that Respondent has rights or legitimate interests in the disputed domain name <gotcredit.com>.
The Panel finds that Complainant failed to meet the burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii). See Tristar Products, Inc. v. Domain Administrator / Telebrands, Corp., FA 1597388 (Forum Feb. 16, 2015) (“Complainant makes conclusory allegations of bad faith but has adduced no specific evidence that warrants a holding that Respondent proceeded in bad faith at the time it registered the disputed domain name. Mere assertions of bad faith, even when made on multiple grounds, do not prove bad faith.”); see also Chris Pearson v. Domain Admin / Automattic, Inc., FA 1613723 (Forum July 3, 2015) (finding that the complainant could not establish the respondent registered and used the disputed domain name in bad faith because it failed to present evidence that would support such a holding).
The Panel notes that since Respondent’s registration of the <gotcredit.com> disputed domain name predates Complainant’s first claimed rights in the GOT CREDIT? mark, Complainant cannot prove registration in bad faith per Policy ¶ 4(a)(iii), as the Policy requires a showing of bad faith registration. See Platterz v. Andrew Melcher, FA 1729887 (Forum Jun. 19, 2017) (“Whatever the merits of Complainant’s arguments that Respondent is using the Domain Name in bad faith, those arguments are irrelevant, as a complainant must prove both bad faith registration and bad faith use in order to prevail.”); see also Faster Faster, Inc. DBA Alta Motors v. Jeongho Yoon c/o AltaMart, FA 1708272 (Forum Feb. 6, 2017) (“Respondent registered the domain name more than a decade before Complainant introduced the ALTA MOTORS mark in commerce. Respondent therefore could not have entertained bad faith intentions respecting the mark because it could not have contemplated Complainant’s then non-existent rights in [the mark] at the moment the domain name was registered.”).
Since the Panel has concluded that Respondent has rights or legitimate interests in the <gotcredit.com> disputed domain name pursuant to Policy ¶ 4(a)(ii), the Panel also finds that Respondent did not register or use the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Record Connect, Inc. v. Chung Kit Lam / La-Fame Corporation, FA 1693876 (Forum Nov. 3, 2016) (finding that the issue of bad faith registration and use was moot once the panel found the respondent had rights or legitimate interests in the disputed domain name); see also Sheet Labels, Inc. v. Harnett, Andy, FA 1701423 (Forum Jan. 4, 2017) (finding that because the respondent had rights and legitimate interests in the disputed domain name, its registration of the name was not in bad faith).
The Panel further finds that Respondent has not registered or used the <gotcredit.com> disputed domain name in bad faith since it finds that Respondent has not violated any of the factors listed in Policy ¶ 4(b) or engaged in any other conduct that would constitute bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Haru Holding Corporation v. Michael Gleissner / NextEngine Ventures LLC, FA 1685263 (Forum Aug. 30, 2016) (finding that where a respondent has not violated any of the factors listed in Policy ¶ 4(b) or engaged in any other conduct that would constitute bad faith, lack of rights or legitimate interests on its own is insufficient to establish bad faith); see also Uhrenholt A/S v. FILLIP NIELSEN, FA 1646444 (Forum Dec. 21, 2015) (finding that mere assertions of bad faith, without evidence, are insufficient for a complainant to establish bad faith under Policy ¶ 4(a)(iii)).
Respondent argues that its registration and use of the <gotcredit.com> domain name predates Complainant’s rights in the GOT CREDIT? mark. Under Policy ¶ 4(a)(iii), where a respondent registered a disputed domain name before a complainant acquired common law or trademark rights in a mark, past panels have found no bad faith registration and/or use. See Telecom Italia S.p.A. v. NetGears LLC, FA 944807 (Forum May 16, 2007) (determining the respondent could not have registered or used the disputed domain name in bad faith where the respondent registered the disputed domain name before the complainant began using the mark). Respondent provides screenshots showing registration and use of the <gotcredit.com> disputed domain name since 2011 and continued use in 2015. See Resp. Exs. A – D. Complainant’s official registration of the GOT CREDIT? mark did not occur until May 5, 2020, and per Complainant’s own USPTO certificate, the earliest date Complainant first used the mark in commerce was Dec. 1, 2017. See Compl. Ex. A. Therefore, the Panel finds Respondent did not register the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Reverse Domain Name Hijacking
Respondent alleges that Complainant has acted in bad faith and is engaging in reverse domain name hijacking by initiating this dispute. Respondent contends that Complainant is attempting to deprive Respondent, the rightful, registered holder of the <gotcredit.com> domain name, of its rights to use the disputed domain name. Respondent argues that Complainant knew Respondent’s registration and use of the disputed domain name predated Complainant’s registration of the GOT CREDIT? mark. Complainant provides screenshots of a series of email exchanges with Complainant’s counsel, where Respondent lays out the timeline it details for the Panel. Respondent registered the disputed domain name in October 2011. See Resp. Ex. A2. Eight years later, Complainant registered the domain name <gotcredit.biz> domain name on Sep. 9, 2019, and submitted a trademark application for the GOT CREDIT? mark on Oct. 31, 2019, which was registered on May 5, 2020. Later that year, Complainant began sending Respondent cease-and-desist letters. In a good faith effort, Respondent removed all content from the disputed domain name’s resolving website that could be construed as infringing on Respondent’s mark. Complainant has refused to accept this action, and has continued to demand the disputed domain name from Respondent. Complainant offered Respondent $3500 for the disputed domain name, a price Respondent finds insultingly low. See Resp. Exs. E1 – E3. Thus, the Panel finds that Complainant knew or should have known that it was unable to prove that Respondent lacks rights or legitimate interests in the <gotcredit.com> domain name, nor could it prove that Respondent registered and is using the disputed domain name in bad faith.
The Panel finds that there is clear evidence that before any notice of a dispute about the disputed domain name, and indeed well before Complainant even began using its mark in commerce, Respondent was using the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Counsel should have known that she could not prove either the 4(a)(ii) or (iii) elements of Complainant’s case, yet proceeded to institute this dispute nonetheless. See Labrada Bodybuilding Nutrition, Inc. v. Glisson, FA 250232 (Forum May 28, 2004) (finding that complainant engaged in reverse domain name hijacking where it used “the Policy as a tool to simply wrest the disputed domain name in spite of its knowledge that the Complainant was not entitled to that name and hence had no colorable claim under the Policy”). Accordingly, the Panel finds that Complainant attempted reverse domain hijacking by instituting this dispute.
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED. Furthermore, the Panel holds that reverse domain hijacking has been committed by Complainant.
Accordingly, it is Ordered that the <gotcredit.com> disputed domain name REMAIN WITH Respondent.
David S. Safran, Chair
Charles Kuechenmeister and Lynda Braun, Panelists
Dated: January 8, 2021
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