Braviant Holdings, LLC v. Domain Admin / GuardPrivacy.org
Claim Number: FA2108001958073
Complainant is Braviant Holdings, LLC ("Complainant"), represented by Lindsay M.R. Jones of Merchant & Gould, P.C., Minnesota, USA. Respondent is Domain Admin / GuardPrivacy.org ("Respondent"), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <balancecredit-member.com> and <balancecredit-5k.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 4, 2021; the Forum received payment on August 4, 2021.
On August 4, 2021, Dynadot LLC confirmed by email to the Forum that the <balancecredit-member.com> and <balancecredit-5k.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 August 9, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 30, 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@balancecredit-member.com, postmaster@balancecredit-5k.com. Also on August 9, 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 September 1, 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 provider in the United States. Complainant adopted the BALANCE CREDIT trademark in 2013 and has used it since then in connection with services related to personal loans and lines of credit. Complainant owns a United States trademark registration for BALANCE CREDIT in standard character form, issued in 2014, and also asserts common law rights in the mark.
Respondent registered <balancecredit-5k.com> in December 2020 and <balancecredit-member.com> in May 2021. The domain names are being used for substantially identical websites that offer services similar to, and in direct competition with, those offered by Complainant. Complainant asserts that Respondent is also using the websites to "phish" for personal information from Complainant's customers. Complainant states that Respondent is not commonly known by and has not been given permission to use Complainant's BALANCE CREDIT mark.
Complainant contends on the above grounds that the disputed domain names <balancecredit-member.com> and <balancecredit-5k.com> are confusingly similar to its BALANCE CREDIT mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are 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 names <balancecredit-member.com> and <balancecredit-5k.com> both incorporate Complainant's registered BALANCE CREDIT trademark, omitting the space and adding a hyphen and a generic or other nondistinctive term, and appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., Braviant Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA 1772426 (Forum Mar. 20, 2018) (finding <balancecredit.org> substantively identical and confusingly similar to BALANCE CREDIT); Sky Plc, Sky UK Ltd. & Sky International AG v. Marc Alexander Nieding / IOS SLSCom / International Office Solutions Palma SLU / Super Privacy Service c/o Dynadot / International Office Solutions SL.S.com, D2017-0590 (WIPO Aug. 10, 2017) (finding <sky-4k.com> confusingly similar to SKY); Penske Truck Leasing Co., L.P. v. "Steven DelCorso" / "Tonya Wilson, DartsMail, LLC", D2016-0521 (WIPO May 2, 2016) (finding <penske-member.com> confusingly similar to PENSKE). The Panel considers each of the disputed domain names to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, 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 names incorporate Complainant's registered mark without authorization, and they are being used for misleading websites that promote services similar to and in competition with those offered by Complainant. (The Panel notes that Respondent's websites are similar to Complainant's in appearance as well as content; state that they are intended only for United States residents; and identify the responsible entity only as "BalanceCredit-Member.com" or "BalanceCredit-5k.com.") Such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., Braviant Holdings, LLC v. Domain Admin / Whois Privacy Corp., 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 disputed domain names, 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 names.
Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered a 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 two domain names incorporating Complainant's registered BALANCE CREDIT mark and is using them for websites that offer directly competing services, in what the Panel infers to be an attempt to pass off as Complainant. The domain name are held in the name of what the Panel presumes to be a privacy registration service acting on behalf of an undisclosed beneficial owner, and Respondent is not identified on the websites other than by the disputed domain names. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Braviant Holdings, LLC v. Domain Admin / Whois Privacy Corp., supra (finding bad faith registration and use 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 <balancecredit-member.com> and <balancecredit-5k.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: September 6, 2021
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