Opportunity Financial, LLC v. Eric Schirmer
Claim Number: FA2101001928585
Complainant is Opportunity Financial, LLC ("Complainant"), represented by Liz Brodzinski of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Eric Schirmer ("Respondent"), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opploans.com.co>, registered with GoDaddy Online Services Cayman Islands Ltd.
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 January 15, 2021; the Forum received payment on January 15, 2021.
On January 19, 2021, GoDaddy Online Services Cayman Islands Ltd. confirmed by email to the Forum that the <opploans.com.co> domain name is registered with GoDaddy Online Services Cayman Islands Ltd. and that Respondent is the current registrant of the name. GoDaddy Online Services Cayman Islands Ltd. has verified that Respondent is bound by the GoDaddy Online Services Cayman Islands 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 January 25, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 16, 2021 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@opploans.com.co. Also on January 25, 2021, 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 February 18, 2021, 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 financial services company that provides personal short-term installment loans, including online personal loans and cash advances. Complainant has used the OPPLOANS mark in connection with its services since at least as early as 2010, and for most of that time has operated a website at the domain name <opploans.com>. Complainant owns a U.S. trademark registration for OPPLOANS in standard character form, issued in 2016, and also asserts common law rights in the mark.
Respondent registered the disputed domain name <opploans.com.co> in October 2020. The domain name is being used for a website that prominently displays the OPPLOANS mark and that promotes personal loans and cash advances, apparently collecting information from potential customers for referral to lenders that compete directly with Complainant. Complainant states that it has not authorized Respondent to use its mark and that Respondent has never been known by the disputed domain name.
Complainant contends on the above grounds that the disputed domain name <opploans.com.co> is identical or confusingly similar to its OPPLOANS mark; 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 identical 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) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <opploans.com.co> corresponds to Complainant's registered OPPLOANS trademark, with the ".com" second-level domain and the ".co" top-level domain appended thereto. These additions are normally irrelevant for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Enterprise Holdings, Inc. v. Whois Privacy Corp. c/o Domain Admin, FA 1684947 (Forum Aug. 24, 2016) (finding <enterprise.com.co> identical or confusingly similar to ENTERPRISE); Twentieth Century Fox Film Corp. v. Private Registrant / Digital Privacy Corporation, FA 1665003 (Forum Apr. 19, 2016) (finding <foxnews.com.co> identical to FOX NEWS); Opportunity Financial, LLC v. Dern Luetarn, D2016-1525 (WIPO Sept. 6, 2016) (finding <opploanscom.com> confusingly similar to OPPLOANS). The Panel considers the disputed domain name to be identical to Complainant's registered mark.
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 for a website that passes off as Complainant to promote directly competing services. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Opportunity Financial, LLC v. Dern Luetarn, 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 corresponding to Complainant’s registered mark and is using it to pass off as Complainant and promote directly competing services. Such conduct is indicative of registration and use in bad faith under the provisions of the Policy cited above. See, e.g., Opportunity Financial, LLC v. Dern Luetarn, 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 <opploans.com.co> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 22, 2021
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