Opportunity Financial, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2208002009308
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Janet J. Lee of Banner & Witcoff, Ltd., Illinois. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), PA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <applyopploans.com>, registered with GoDaddy.com, 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.
Petter Rindforth as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 22, 2022; the Forum received payment on August 22, 2022.
On August 23, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <applyopploans.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 24, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 13, 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@applyopploans.com. Also on August 24, 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 September 19, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Petter Rindforth 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
The Complainant operates as a financial services company that provides short-term installment loans. Complainant claims rights in the OPPLOANS trademark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,042,920, registered September 13, 2016).
Respondent’s <applyopploans.com> domain name incorporates Complainant’s OPPLOANS trademark in its entirety, and adds the descriptive term “apply” and the “.com” generic top-level domain (“gTLD”) to form.
Respondent lacks rights or legitimate interests in the <applyopploans.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its trademark in the disputed domain name. Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead passes off as Complainant.
Respondent registered and uses the <applyopploans.com> domain name in bad faith. Respondent registered the disputed domain name with intent to sell the rights to the domain name. Further, Respondent uses the disputed domain name to attract users and disrupt Complainant’s business through the use of pay-per-click links to competing third parties. Respondent registered and uses the disputed domain name with actual knowledge of Complainant’s rights in the OPPLOANS trademark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the following U.S. trademark registration:
No. 5,042,920 OPPLOANS (word), registered September 13, 2016 for services in class 36.
The disputed domain name <applyopploans.com> was registered on December 14, 2021.
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 trademark through its registration with the USPTO (Reg. No. 5,042,920, registered September 13, 2016). Registration with the USPTO is generally sufficient in demonstrating rights in a trademark under Policy ¶ 4(a)(i). See H-D Michigan, LLC v. Private Whois Service, FA 1006001328876 (Forum July 12, 2010) (finding that “Complainant has sufficiently registered its HARLEY-DAVIDSON mark with the USPTO to prove Complainant’s rights in the mark according to Policy ¶ 4(a)(i), regardless of the fact that Respondent lives or operates outside the United States.”). Therefore, the Panel find that Complainant has rights in the OPPLOANS trademark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <applyopploans.com> domain name is identical or confusingly similar to Complainant’s OPPLOANS trademark. Under Policy ¶ 4(a)(i), fully incorporating a trademark in its entirety and adding a descriptive term fails to sufficiently distinguish a domain name from a registered mark. See Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).”). Further, the addition of the “.com” gTLD is irrelevant when determining whether a disputed domain name is identical or confusingly similar to a protected trademark. See Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). Respondent’s <applyopploans.com> domain name fully incorporates Complainant’s OPPLOANS trademark and adds the descriptive term “apply” and the “.com” gTLD. The term “apply” (meaning “to put to use especially for some practical purpose”) is arguably descriptive as it is heavily associated with Complainant’s service as a loan provider. Therefore, the Panel agrees with Complainant’s conclusion, and may find that Respondent’s domain name is confusingly similar to Complainant’s trademark pursuant to Policy ¶ 4(a)(i).
Once the Complainant makes a prima facie case in support of its allegations in respect of the second element of the Policy, the burden shifts to the Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Complainant contends that Respondent lacks rights or legitimate interests in the <applyopploans.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed to Respondent any rights in the OPPLOANS trademark. Under Policy ¶ 4(c)(ii), information in the record that reveals that a registrant’s name is materially different from the disputed domain name may be used to determine that a respondent is not commonly known by a disputed domain name. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM , FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). Further, lack of authorization to use a complainant’s trademark may indicate that the respondent is not commonly known by the disputed 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 disputed domain name lists the registrant as “Carolina Rodrigues/Fundacion Comercio Electronico”. Additionally, there is no evidence to suggest that Respondent was authorized to use Complainant’s OPPLOANS trademark in the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant further argues that Respondent uses the <applyopploans.com> domain name in order to pass off as the Complainant. Impersonating a complainant in a confusingly similar domain name’s resolving webpage is neither a bona fide offering of goods or services, nor a legitimate non-commercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name). Respondent uses the disputed domain name’s resolving webpage to impersonate Complainant through the prominent use of Complainant’s trademark and logo. The Panel therefore agrees with Complainant’s conclusion, and finds that Respondent does not use the <applyopploans.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).
Complainant contends that Respondent registered the disputed domain name with intent to sell in bad faith per Policy ¶ 4(b)(i). A respondent’s general offer of a domain name for sale may evidence a respondent’s bad faith. See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”). Here, Complainant has provided evidence that Respondent is offering to sell the disputed domain name for $999, a price well in excess of out of pocket costs. The Panel therefore finds it clear that that the Respondent registered the <applyopploans.com> domain name with intent to sell, and the Panel there by finds that the Respondent registered the disputed domain name in bad faith under Policy ¶ 4(b)(i).
Additionally, Complainant argues that Respondent uses the <applyopploans.com> domain name in bad faith because Respondent disrupts Complainant’s business and attempts to attract Internet users to its competing website for commercial gain. A respondent’s use of a disputed domain name to host links to a site that offers competing goods or services to a complainant can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”). Further, a respondent’s use of a domain name that is obviously connected to a complainant’s trademark indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use). In the present case, the Complainant has attached screenshots of the disputed domain name’s resolving webpage which hosts links to competitors of Complainant, presumably for pay-per-click referral fees. Additionally, Respondent incorporated the entirety of Complainant’s OPPLOANS trademark in the <applyopploans.com> domain name. Therefore, the Panel finds that Respondent uses the disputed domain name for disruption and attraction for commercial gain in bad faith pursuant to paragraphs 4(b)(iii) and 4(b)(iv).
Furthermore, Complainant asserts that Respondent registered the <applyopploans.com> domain name with actual knowledge of Complainant’s rights in the OPPLOANS trademark. Actual notice may be determined by looking at the respondent’s specific use of the trademark, such as to impersonate the complainant. See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”). Complainant’s OPPLOANS trademark is entirely incorporated in Respondent’s <applyopploans.com> domain name. Respondent uses the disputed domain name’s resolving webpage in order to impersonate Complainant. Therefore, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the OPPLOANS trademark under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <applyopploans.com> domain name be TRANSFERRED from Respondent to Complainant.
Petter Rindforth, Panelist
Dated: September 27, 2022
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