Oportun, Inc. v. wachira thientanopajai
Claim Number: FA2205001995500
Complainant is Oportun, Inc. (“Complainant”), represented by Ryan Compton of DLA Piper LLP (US), District of Columbia, USA. Respondent is wachira thientanopajai (“Respondent”), Thailand.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <loanslikeoportun.com>, registered with NameCheap, Inc.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 9, 2022; the Forum received payment on May 9, 2022.
On May 9, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <loanslikeoportun.com> 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 May 10, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 31, 2022 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@loanslikeoportun.com. Also on May 10, 2022, 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 June 6, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Oportun, Inc., operates as a provider of personal loans and a certified Community Development Financial Institution.
Complainant has rights in the OPORTUN mark through its registration with multiple trademark agencies, including the United States Patent and Trademark Office (“USPTO”).
Respondent’s <loanslikeoportun.com> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the entirety of Complainant’s mark, adds the additional non-distinctive words “loans” and “like” along with the generic top-level domain (“gTLD”) “.com”.
Respondent lacks rights and legitimate interests in the <loanslikeoportun.com> domain name. Respondent has not licensed or otherwise permitted Respondent to use its OPORTUN mark in the at-issue domain name nor is Respondent commonly known by the domain name. Respondent does make any bona fide offering of goods or services through the at-issue domain name, nor any legitimate non-commercial or fair use. Rather, Respondent uses the at-issue domain name to divert Internet users meant for Complainant. Respondent uses the arbitrary fanciful OPORTUN mark to create a false impression of association with Complainant.
Respondent registered and uses the <loanslikeoportun.com> domain name in bad faith. Respondent uses the disputed domain name to disrupt Complainant’s business. Respondent uses the disputed domain name to attract Internet users for commercial gain by creating a likelihood of confusion with Complainant’s OPORTUN mark. Respondent’s use of the well-known OPORTUN mark evidences opportunistic bad faith. Respondent registered the disputed domain name using a privacy protection service in order to hide its identity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the OPORTUN trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the OPORTUN trademark.
Respondent uses the at-issue domain name to divert internet traffic from Complainant to Respondent.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant has multiple national registrations for its OPORTUN trademark including registration with the USPTO. A single national trademark registration is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See State Farm Mutual Automobile Insurance Company v. Henry Francis, FA 1738716 (Forum July 28, 2017) (acknowledging complainant’s rights in a mark when it had registered the mark with the United States Patent and Trademark Office and the Canadian Intellectual Property Office); see also Bittrex, Inc. v. Domain Privacy Services, FA 1786849 (Forum June 15, 2018) (finding Complainant has trademark rights in the BITTREX mark through registration of the mark with the EUIPO and the USPTO.).
The at-issue domain name contains Complainant’s OPORTUN trademark prefixed with the term or terms “loans” and “like” with all followed by the “.com” top-level domain name. The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the domain name from Complainant’s OPORTUN mark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s at-issue domain name is confusingly similar to Complainant’s OPORTUN trademark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “wachira thientanopajaiore” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <loanslikeoportun.com> domain name. The Panel therefore concludes that Respondent is not commonly known by <loanslikeoportun.com> for the purposes of Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”).
Additionally, Respondent’s <loanslikeoportun.com> domain name appears to be used to direct internet traffic to a website operated or controlled by Respondent. Respondent’s use of the at-issue domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). Further, the inclusion of a fanciful mark in the at-issue domain name such as Complainant’s OPORTUN trademark also indicates a lack of right or legitimate interests in the at-issue domain name. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb.18, 2000) (finding (i) the fact that the complainant has not licensed or otherwise permitted the respondent to use any of its trademarks, and (ii) the fact that the word TELSTRA appears to be an invented word, and as such is not one traders would legitimately choose unless seeking to create an impression of an association with the complainant, demonstrate that the respondent lacks rights or legitimate interests in the domain name).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First and as mentioned above, Respondent uses the at-issue domain to direct internet traffic intended for Complainant to its own website. Respondent’s use of the confusingly similar <loanslikeoportun.com> domain name to misdirect traffic away from Complainant to a web presence not within Complainant’s control is disruptive to Complainant’s business and shows Respondent’s bad faith under Policy ¶ 4(b)(iii). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)).
Moreover, Respondent exploits the confusion it created between Complainant’s trademark and the at-issue domain name regarding the domain name’s sponsorship by, or affiliation with, Complainant thereby showing Respondent’s bad faith under Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <loanslikeoportun.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 7, 2022
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