KMD Partners, LLC v. Jecaterina Dvorjanska / James Slavin
Claim Number: FA2111001973392
Complainant is KMD Partners, LLC (“Complainant”), represented by Gregory J. Chinlund of Marshall, Gerstein & Borun LLP, Illinois, USA. Respondent is Jecaterina Dvorjanska / James Slavin (“Respondent”), Latvia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <creditninja.loan> and <creditninja.me>, (‘the Domain Names’) registered with Name.com, Inc.; Guangdong Nicenic Technology Co., Ltd. dba NiceNIC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 15, 2021; the Forum received payment on November 15, 2021.
On November 16, 2021; November 19, 2021, Name.com, Inc.; Guangdong Nicenic Technology Co., Ltd. dba NiceNIC confirmed by e-mail to the Forum that the <creditninja.loan> and <creditninja.me> Domain Names are registered with Name.com, Inc.; Guangdong Nicenic Technology Co., Ltd. dba NiceNIC and that Respondent is the current registrant of the names. Name.com, Inc.; Guangdong Nicenic Technology Co., Ltd. dba NiceNIC has verified that Respondent is bound by the Name.com, Inc.; Guangdong Nicenic Technology Co., Ltd. dba NiceNIC 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 November 29, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 20, 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@creditninja.loan, postmaster@creditninja.me. Also on November 29, 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 December 27, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 Names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain name(s) at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. 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.”
The Domain Names both point to the same competing web site offering financial services. The “Terms of Use” page on the site attached to the Domain Names indicates that the site attached to both Domain Names is owned and operated by QuickAdvanceLoan.com and the Domain Names were registered using the same contact e mail address. The Panel finds that the Domain Names are controlled by the same person and/or entity operating under different aliases.
A. Complainant
The Complainant is the owner of the trade mark CREDIT NINJA registered, inter alia, in the USA for financial services with first use recorded as 2018.
The Domain Names registered in 2021 are identical to the Complainant’s trade mark for the purposes of the Policy adding only the gTLDs “.loan” or “.me” which do not distinguish the Domain Names from the Complainant’s mark.
Respondent has no rights or legitimate interests in the Domain Names, is not commonly known by them and is not authorized by the Complainant.
The Respondent’s website attached to the Domain Names prominently features the Complainant’s url creditninja.com as a masthead passing off the Respondent’s site as an official site of the Complainant. This is not a bona fide offering of goods or services or legitimate noncommercial or fair use. It is registration and use in bad faith disrupting the Complainant’s business and diverting Internet users for commercial gain in actual knowledge of the Complainant’s rights and business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark CREDIT NINJA registered, inter alia, in the USA for financial services with first use recorded as 2018.
The Domain Names registered in 2021 have been pointed to a competing web site offering financial services not connected with the Complainant but using the Complainant’s domain name creditninja.com as a masthead.
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”).
The Domain Names consists of the Complainant’s CREDIT NINJA trade mark (registered in the USA for financial services with first use recorded as 2018) and the gTLDs “.loan” or “.me”.
The gTLDs “.loan” or “.me” do not serve to distinguish the Domain Names from the Complainant’s mark, which is the distinctive component of the Domain Names. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Names are both identical for the purpose of the Policy to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Respondent has not answered this Complaint and is not authorized by the Complainant. The Respondent does not appear to be commonly known by the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The use of the Domain Names is commercial so cannot be legitimate noncommercial fair use.
The web site attached to the Domain Names uses the Complainant's url creditninja.com to purport to be an official site of the Complainant. The Panel finds this use is deceptive. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.).
Based on the evidence the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is deceptive and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it offers financial services under the Complainant’s url credit ninja.com as a masthead giving the impression that the site attached to the Domain Names is official when it is not. The use of the Complainant’s url shows that the Respondent was aware of the Complainant, its rights and business.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its web site by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site and/or services offered on it likely to disrupt the business of the Complainant. See Asbury Auto Group Inc. v. Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use).
As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 4(b)(iii) and 4(b)(iv) for both Domain Names.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <creditninja.loan> and <creditninja.me> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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