Funding Circle Limited v. tim mcelwain / timmcelweain
Claim Number: FA2207002003934
Complainant is Funding Circle Limited (“Complainant”), represented by Amanda L. DeFord of McGuireWoods LLP, Virginia, USA. Respondent is tim mcelwain / timmcelweain (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <apply-fundingcircle.com>, registered with Tucows Domains 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 July 12, 2022; the Forum received payment on July 12, 2022.
On July 13, 2022, Tucows Domains Inc. confirmed by e-mail to the Forum that the <apply-fundingcircle.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 July 13, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 2, 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@apply-fundingcircle.com. Also on July 13, 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 August 3, 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 provides a platform for investors to lend money to small and medium-sized businesses.
Complainant asserts rights in the FUNDING CIRCLE mark through its registration of the mark with multiple trademark agencies around the world, including the United States Patent and Trademark Office (“USPTO”).
Respondent’s <apply-fundingcircle.com> domain name is identical or confusingly similar to Complainant’s FUNDING CIRCLE mark, as it incorporated the mark in its entirety, only adding the generic term “apply”, a hyphen, and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <apply-fundingcircle.com> domain name. Complainant has not authorized or licensed Respondent to use the FUNDING CIRCLE mark, nor is Respondent commonly known by the at-issue domain name. Further, Respondent is not using the domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as Respondent uses the at-issue domain name to fraudulently pass off as Complainant’s employee via email. Additionally, the resolving website is inactive.
Respondent registered and uses the <apply-fundingcircle.com> domain name in bad faith. Respondent attempts to attract users for commercial gain by passing off as Complainant via email. Further, Respondent had actual notice of Complainant’s rights, evidenced by the fame of the mark, as well as Respondent’s fraudulent emails. Finally, no website is addressed by the at-issue domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the FUNDING CIRCLE mark.
Respondent has not been authorized to use Complainant’s trademark.
Respondent registered the at-issue domain name after Complainant acquired rights in FUNDING CIRCLE.
Respondent uses the at-issue domain name to facilitate fraud.
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 is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO registration for FUNDING CIRCLE, or any of its other national trademark registrations for FUNDING CIRCLE, is sufficient to established Complainant’s rights in such mark under Policy 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”).
The at-issue domain name contains Complainant’s FUNDING CIRCLE trademark less its domain name impermissible space, prefixed by the term “apply” and a hyphen, and with all followed by the “.com” top-level domain name. The differences between <apply-fundingcircle.com> and Complainant’s trademark are insufficient to distinguish the domain name from the trademark under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <apply-fundingcircle.com> domain name is confusingly similar to Complainant’s FUNDING CIRCLE mark. 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, absent evidence of Policy ¶ 4(c) circumstances 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 Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for <apply-fundingcircle.com> shows that “tim mcelwain / timmcelweain” is at-issue domain name’s registrant and there is no evidence in the record indicating that Respondent is otherwise known by the <apply-fundingcircle.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent sends email originating from the <apply-fundingcircle.com> domain name to Complainant’s customers. The email pretends to be from an employee of Complainant and includes content designed to deceive the customer into sending a wire transfer that otherwise would have gone to Complainant to Respondent’s account instead. Such use of the confusingly similar domain name is not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶ 4(c)(iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
Respondent’s <apply-fundingcircle.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that permit the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First and as mentioned above regarding rights and interests, Respondent uses the at-issue domain name to facilitate an email centric phishing scheme designed to swindle funds from Complainant’s customers. Such use of the confusingly similar domain name indicates Respondent’s bad faith under the Policy. See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use);
Moreover, Respondent had actual knowledge of Complainant’s rights in the FUNDING CIRCLE mark at the time it registered <apply-fundingcircle.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s FUNDING CIRCLE trademark, and from Respondent’s use of <apply-fundingcircle.com> to perpetrate an email phishing scheme as discussed elsewhere herein. Respondent’s registration and use of the at-issue domain name with knowledge of Complainant’s rights in FUNDING CIRCLE further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <apply-fundingcircle.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: August 4, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page