Opportunity Financial, LLC v. Zhi Chao Yang
Claim Number: FA2208002010081
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Janet J. Lee of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Zhi Chao Yang (“Respondent”), CN, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opploanw.com>, registered with Chengdu West Dimension Digital Technology Co., Ltd., Chengdu West Dimension Digital Technology Co., Ltd.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to Forum electronically on August 29, 2022; Forum received payment on August 29, 2022. The Complaint was received in both Chinese and English.
On August 30, 2022, Chengdu West Dimension Digital Technology Co., Ltd., Chengdu West Dimension Digital Technology Co., Ltd confirmed by e-mail to Forum that the <opploanw.com> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd., Chengdu West Dimension Digital Technology Co., Ltd and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd., Chengdu West Dimension Digital Technology Co., Ltd has verified that Respondent is bound by the Chengdu West Dimension Digital Technology Co., Ltd., Chengdu West Dimension Digital Technology Co., Ltd 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 1, 2022, Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of September 21, 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@opploanw.com. Also on September 1, 2022, the Chinese language 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, Forum transmitted to the parties a Notification of Respondent Default.
On September 30, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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, Opportunity Financial, LLC, provides financial services such as personal loans and cash advances. Complainant has rights in the OPPLOANS mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., 5,042,920, registered Sep. 13, 2016). The <opploanw.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark with a slight misspelling and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <opploanw.com> domain because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s OPPLOANS mark.
Respondent has registered and uses the <opploanw.com> domain name in bad faith because Respondent uses the disputed domain name to create bad faith attraction for commercial gain and to disrupt Complainant’s business. In addition, Respondent offers the disputed domain for sale in excess of its out-of-pocket costs and had actual knowledge of Complainant’s rights in the OPPLOANS mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Panel Note: Language of the Proceedings
The Panel notes that the Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Here, Complainant highlights that Respondent’s domain name incorporates Complainant’s misspelled English language OPPLOANS mark, uses the “.com” gTLD, which targets English speakers, and the links on the disputed domain’s resolving webpage are written in English, all suggesting that Respondent is at least proficient in the English language. Further, Complainant will experience undue delay and unnecessary costs to conduct the proceedings in Chinese
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant is Opportunity Financial, LLC (“Complainant”), of Chicago, IL, USA. Complainant is the owner of the domestic registration for the OPPLOANS mark which it has continuously used since at least as early as 2010 in association with its provision of various financial services including personal loans, cash advances, and short-term installment lending.
Respondent is Zhi Chao Yang (“Respondent”), of Anhui, CN. Respondent’s registrar’s address is listed as Chengdu, CN. The Panel notes that the <opploanw.com> domain name was registered on or about October 24, 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 asserts rights in the OPPLOANS mark based on registration with the United States Patent and Trademark Office. Registration with the USPTO is generally sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Here, Complainant provides evidence of its registration with the USPTO for the OPPLOANS mark (e.g., 5,042,920, registered Sep. 13, 2016). The Panel here finds that Complainant has rights in the OPPLOANS mark under Policy ¶ 4(a)(i).
Complainant argues that the <opploanw.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark with the letter “s” in the mark changed to “w” and added the “.com” gTLD. Domain names which incorporate the entire mark, even with a slight misspelling, are usually considered confusingly similar under Policy ¶ 4(a)(i). See Staples, Inc. v. Whois Privacy Shield Services, FA 1617690 (Forum June 5, 2015) (holding that “Changing a single letter (especially when it is the final letter) is a minor enough change to support a finding of confusing similarity under Policy ¶ 4(a)(i).”). Further, adding a gTLD generally creates no distinction between a complainant’s mark and a disputed domain name. See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Here, Respondent has made the minor changes identified above and these changes do not create a sufficient distinction between the disputed domain name and Complainant’s mark. The Panel here finds that Respondent’s domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
Rights or Legitimate Interests
The Panel notes that 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 here finds that Complainant has set forth the requisite prima facie case.
Complainant claims that Respondent does not have rights or legitimate interests in the <opploanw.com> domain name because Respondent is not commonly known by the disputed domain name and is not associated with Complainant or authorized to use Complainant’s OPPLOANS mark. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy 4 ¶ (c)(ii). See Guardair Corporation v Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the guardair.com domain name according to Policy ¶ (c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Additionally, lack of authorization to use a complainant’s mark may demonstrate 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). Here, there is no evidence available in the WHOIS information that indicates Respondent is known by <opploanw.com> and nothing has been submitted or found to refute Complainant’s contention that Respondent is not authorized to use the OPPLOANS mark. The Registrar only lists the registrant of the domain as “Zhi Chao Yang.” The Panel here finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent has registered and uses the <opploanw.com> domain in bad faith because Respondent lists the domain for sale in excess of its out-of-pocket costs which is evidence of bad faith under policy ¶ 4(b)(i). See Retail Royalty Company and AE Direct Co LLC v. Whois Foundation / DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin, FA 1821246 (Forum Jan. 13, 2019) (“Respondent lists the disputed domain name for sale for $5,759, which is a price well in excess of out of pocket costs. Such an offering can evince bad faith under Policy ¶ 4(b)(i).”). Here, Complainant has provided evidence that Respondent offers to sell the disputed domain for $7,999, which Complainant argues is well above its out-of-pocket costs. The Panel here finds that Respondent has registered and uses the disputed domain in bad faith under Policy ¶ 4(b)(i).
Next, Complainant argues that Respondent has registered and uses the <opploanw.com> domain in bad faith because it registered the domain to disrupt Complainant’s business and create bad faith attraction for commercial gain. Registration and use of a disputed domain name which is confusingly similar to a complainant’s mark, and using that domain name to host parked, pay-per-click links is evidence of bad faith per Policy ¶ 4(b)(iii) and (b)(iv). See Zynex Medical, Inc. v. New Ventures Services, Corp, FA 1788042 (Forum July 2, 2018) (“The resolving webpage [] appears to display [competing] links such as “Electrical Stimulation” and “Physical Therapy Software.” Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).”). Here, Respondent’s disputed domain name is confusingly similar to Complainant’s OPPLOANS mark. Furthermore, Complainant has provided a screenshot of the disputed domain’s resolving webpage. The webpage hosts parked, pay-per-click links relating to Complainant’s business (i.e., “personal loans” link). The related links coupled with the disputed domain name incorporating Complainant’s misspelled OPPLOANS mark, supports the conclusion that Respondent hopes to profit from the confusion by diverting consumers who may be seeking Complainant’s services to Respondent’s webpage. The Panel here finds that Respondent has registered and uses the disputed domain in bad faith.
Finally, Complainant argues that Respondent registered the <opploanw.com> domain in bad faith because Respondent had actual knowledge of Complainant’s rights in the OPPLOANS mark prior to registering the disputed domain name. Panels may find that respondents had actual knowledge of a complainant's mark based on the name of the disputed domain as well as bad faith use of the domain and therefore determine that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Here, Complainant argues that Respondent had actual knowledge of Complainant’s rights in the mark given that Respondent’s domain name incorporates Complainant’s entire misspelled OPPLOANS mark. Furthermore, Respondent’s efforts to sell the domain in excess of its out-of-pocket costs demonstrates that Respondent hopes to benefit commercially by knowingly using Complainant’s mark. The Panel here finds that Respondent had actual knowledge of Complainant’s rights, and that Respondent registered and uses the disputed domain in bad faith under Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
DECISION
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <opploanw.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: October 13, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page