Opportunity Financial, LLC v. Domain Admin / Whois Privacy Corp.
Claim Number: FA2109001962702
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Liz Brodzinski of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oppeloans.com>, registered with Internet Domain Service BS Corp..
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 8, 2021; the Forum received payment on September 8, 2021.
On September 9, 2021, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <oppeloans.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 September 10, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 30, 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 postmaster@oppeloans.com. Also on September 10, 2021, 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 October 6, 2021, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 specializing in personal, short term installment loans. Complainant has rights in the OPPLOANS mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. 5,042,920, registered September 13, 2016). Respondent’s <oppeloans.com> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and adds an extra “e” in the middle of the mark, as well as the “.com” generic top-level domain name to the end.
Respondent lacks rights and legitimate interests in the <oppeloans.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the OPPLOANS mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legimate noncommercial or fair use, but instead passes off as Complainant offers competing services on the disputed domain name’s resolving website.
Respondent registered and uses the <oppeloans.com> domain name in bad faith. Respondent disrupts Complainant’s business for commercial gain by passing off as Complainant and fraudulently offering competing services on the disputed domain name’s resolving website. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the OPPLOANS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <oppeloans.com> domain name.
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”).
Complainant claims rights in the OPPLOANS mark through its registration with the USPTO (Reg. 5,042,920, registered September 13, 2016). Registration with the USPTO is generally sufficient in demonstrating rights in a mark under Policy ¶ 4(a)(i). See Zoosk, Inc. v. Brock Linen, FA 1811001818879 (Forum Jan. 28, 2019) (”The Panel here finds that Complainant’s registration of the ZOOSK mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4a(a)(i).”). The Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <oppeloans.com> domain name is identical or confusingly similar to Complainant’s OPPLOANS mark. Under Policy ¶ 4(a)(i), adding an extra “e” in a mark along with a “.com” gTLD is generally insufficient in differentiating the domain name from the mark it incorporates. See Staples, Inc. v. lin yanxiao, FA 1617686 (Forum June 4, 2015) (finding that the <stapeles.com> domain name is confusingly similar to the STAPLES mark, as it merely adds the letter “e” and the gTLD “.com” to Complainant’s mark). The disputed domain name incorporates the OPPLOANS mark in its entirety, adds an “e” to the middle of the mark, and adds the “.com” gTLD to the end of the mark. The Panel agrees and finds that Respondent’s domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. 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 Panel finds that Complainant has made a prima facie case.
Complainant argues that Respondent is not commonly known by the <oppeloans.com> domain name, nor has Complainant authorized or licensed Respondent to use its OPPLOANS mark in the disputed domain name. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information, or lack thereof where hidden behind a privacy service, may demonstrate that a Respondent is not commonly known by a disputed domain name, while a lack of evidence demonstrating otherwise may affirm a Complainant’s claim that it never authorized or licensed Respondent to use its mark in a disputed domain name. See PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. See also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). The WHOIS of record lists no information but a WHOIS privacy service, and nothing in the record rebuts Complainant’s assertion that it never authorized or licensed Respondent to use its mark in the disputed domain name. The Panel agrees and finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the <oppeloans.com> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to pass off as a Complainant and offer competing products or services is generally not considered a bona fide offering of goods or services, nor any legitimate noncommercial or fair use. See Kmart of Mich., Inc. v. Cone, FA 655014 (Forum Apr. 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not 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) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website). Complainant provides a screenshot of the disputed domain name’s resolving website, which features Complainant’s marks and offers for similar loan related services. The Panel finds that Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <oppeloans.com> domain name for bad faith disruption for commercial gain. Under Policy ¶¶ 4(b)(iii) and (iv), using a disputed domain name to pass off as a Complainant and fraudulently offer competing goods and/or services is generally considered evidence of bad faith. See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); see also 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). The Panel may recall Complainant’s screenshot of the disputed domain name’s resolving website, which features Complainant’s mark and purports to offer similar and competing loan services. The Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant argues that Respondent registered the <oppeloans.com> domain name in bad faith as it had actual knowledge of Complainant’s rights in the OPPLOANS mark. Under Policy ¶ 4(a)(iii), actual knowledge is generally sufficient in demonstrating bad faith, and may be shown through incorporation of a well-known/registered mark into a domain name, along with Respondent’s use of the domain name’s resolving website. See G.D. Searle & Co. v. Pelham, FA 117911 (Forum Sept. 19, 2002) (“[I]t can be inferred that Respondent had knowledge of Complainant’s rights in the CELEBREX mark because Respondent is using the CELEBREX mark as a means to sell prescription drugs, including Complainant’s CELEBREX drug.”). The disputed domain name incorporates the entirety of the OPP LOANS mark, and resolves to a website with Complainant’s mark prominently displayed alongside content advertising competing loan services. The Panel finds that Respondent registered and uses the domain name in bad faith with actual knowledge of Complainant’s rights in the OPPLOANS mark under Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <oppeloans.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
October 11, 2021
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