Opportunity Financial, LLC v. Zhi Chao Yang
Claim Number: FA2208002010083
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Janet J. Lee of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Zhi Chao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lpploans.com>, <opplozns.com>, <opploahs.com>, <opploansd.com>, <opploanx.com>, <hopploans.com>, <opploajs.com>, <op-loans.com>, <opploansn.com>, and <opploanse.com>, registered with Cloud Yuqu 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to Forum electronically on August 29, 2022; Forum received payment on August 29, 2022. The Complaint was submitted in English.
On August 29, 2022, Cloud Yuqu Llc confirmed by e-mail to Forum that the <lpploans.com>, <opplozns.com>, <opploahs.com>, <opploansd.com>, <opploanx.com>, <hopploans.com>, <opploajs.com>, <op-loans.com>, <opploansn.com>, and <opploanse.com> domain names are registered with Cloud Yuqu Llc and that Respondent is the current registrant of the names. Cloud Yuqu Llc has verified that Respondent is bound by the Cloud Yuqu 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 September 1, 2022, Forum served the Complaint and all Annexes, including a Chinese and English 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@lpploans.com, postmaster@opplozns.com, postmaster@opploahs.com, postmaster@opploansd.com, postmaster@opploanx.com, postmaster@hopploans.com, postmaster@opploajs.com, postmaster@op-loans.com, postmaster@opploansn.com, postmaster@opploanse.com. Also on September 1, 2022, the Chinese and English 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 29, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in English. After considering the circumstance of the present case, including Respondent’s failure to object or otherwise respond, the Panel finds that this proceeding should be in English.
A. Complainant
Complainant contends as follows:
Complainant, Opportunity Financial, LLC, offers financial services and personal short-term installment loans.
Complainant has rights in the OPPLOANS mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <lpploans.com>, <opplozns.com>, <opploahs.com>, <opploansd.com>, <opploanx.com>, <hopploans.com>, <opploajs.com>, <op-loans.com>, <opploansn.com>, and <opploanse.com> domain names are virtually identical and confusingly similar to Complainant’s mark because each one incorporates the OPPLOANS mark in its entirety and adds or deletes letters in order to create simple typographical errors. Each at-issue domain also contains the “.com” generic top-level domain (“gTLD”).
Respondent has no legitimate interests in at-issue domain names. Respondent is not commonly known by any at-issue domain name and Complainant has not authorized or licensed Respondent any rights in the OPPLOANS mark. Additionally, Respondent does not use the domain names for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the at-issue domain names resolves to webpages that display pay-per-click advertisements to services identical to those offered under the OPPLOANS mark Respondent attempts to pass off as affiliated with Complainant.
Respondent registered and uses the at-issue domain names in bad faith. Respondent offers the disputed domain names for sale to the general public and to offer pay-per-click links to competing services. Respondent registered the disputed domain names in order to disrupt Complainant’s business and divert customers for commercial gain. Finally, Respondent registered the disputed domain names with actual knowledge of Complainant’s OPPLOANS trademark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in OPPLOANS.
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 names after Complainant acquired rights in the OPPLOANS trademark.
Respondent registered and uses the at-issue domain names offer them for sale and to address webpages that display pay-per-click advertisements to services identical to Complainant’s offering.
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 names are each confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration for its OPPLOANS trademark. Any relevant national trademark registration is sufficient to demonstrate Complainant’s rights in a 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”).”).
Respondent’s <lpploans.com>, <opplozns.com>, <opploahs.com>, <opploansd.com>, <opploanx.com>, <hopploans.com>, <opploajs.com>, <op-loans.com>, <opploansn.com>, and <opploanse.com> domain names are each confusingly similar to Complainant’s OPPLOANS mark. The domain names each incorporate a misspelled/mistyped version of Complainant’s trademark followed by the “.com” top-level domain name. The differences between the <lpploans.com>, <opplozns.com>, <opploahs.com>, <opploansd.com>, <opploanx.com>, <hopploans.com>, <opploajs.com>, <op-loans.com>, <opploansn.com>, and <opploanse.com> domain names and Complainant’s OPPLOANS trademark are insufficient to distinguish any domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds that pursuant to Policy ¶ 4(a)(i) that Respondent’s <lpploans.com>, <opplozns.com>, <opploahs.com>, <opploansd.com>, <opploanx.com>, <hopploans.com>, <opploajs.com>, <op-loans.com>, <opploansn.com>, and <opploanse.com> domain name are each confusingly similar to Complainant’s OPPLOANS trademark. See Omaha Steaks International, Inc. v. DN Manager / Whois-Privacy.Net Ltd, FA 1610122 (Forum July 9, 2015) (finding, “The domain name differs from the mark only in that the domain name substitutes the letter ‘a’ in the word ‘steak’ with the letter ‘c’ and adds the generic Top Level Domain (‘gTLD’) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”); see also Myspace, Inc. v. Kang, FA 672160 (Forum June 19, 2006) (finding that the <myspce.com> domain name was confusingly similar to the complainant’s MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity).
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 each 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 the at-issue domain names identifies the domain names’ registrant as “Zhi Chao Yang” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by any of the at-issue domain names. The Panel therefore concludes that Respondent is not commonly known by <lpploans.com>, <opplozns.com>, <opploahs.com>, <opploansd.com>, <opploanx.com>, <hopploans.com>, <opploajs.com>, <op-loans.com>, <opploansn.com>, or <opploanse.com>for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent uses the confusingly similar <lpploans.com>, <opplozns.com>, <opploahs.com>, <opploansd.com>, <opploanx.com>, <hopploans.com>, <opploajs.com>, <op-loans.com>, <opploansn.com>, and <opploanse.com> domain names to address webpages displaying pay-per-click links to Complainant’s competition. Respondent’s use of the confusingly similar domain names in this manner indicates 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) regarding any of the at-issue domain names. See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business); see also, The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows 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 and demonstrates Respondent’s lack of rights and lack of interests in respect of each at-issue domain names under Policy ¶ 4(a)(ii).
Respondent’s <lpploans.com>, <opplozns.com>, <opploahs.com>, <opploansd.com>, <opploanx.com>, <hopploans.com>, <opploajs.com>, <op-loans.com>, <opploansn.com>, and <opploanse.com>domain names were each registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy regarding each of the domain names.
First, on webpages addressed by the at-issue domain names Respondent has generally offered the at-issue domain names for sale to the public for $7,999 usd, an amount reasonably in excess of their out-of-pocket costs. It is likely that reselling the domain names was a prime reason for their registration. Respondent’s offer to sell the at-issue domain names indicates Respondent’s bad faith registration and use of such domain names pursuant to Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”); see also Airbnb, Inc. v. 张昕 / 何青玉, FA 1786279 (Forum June 18, 2018) (“Complainant provides a screenshot of the disputed domain name’s resolving webpage, where Respondent offers to sell the domain name for €9,999 [. . .] The Panel therefore finds that Respondent registered and is using the <airbnb.pro> domain name in bad faith per Policy ¶ 4(b)(i).”).
Next, as mentioned above regarding rights and legitimate interests Respondent uses its confusingly similar <lpploans.com>, <opplozns.com>, <opploahs.com>, <opploansd.com>, <opploanx.com>, <hopploans.com>, <opploajs.com>, <op-loans.com>, <opploansn.com>, and <opploanse.com>domain names to address webpages displaying pay-per-click hyperlinks to services identical to those offered by Complainant. Doing so shows Respondent’s bad faith registration and use of the at-issue domain names under Policy ¶¶ 4(b)(iii) and (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).”); see also Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”).
Moreover, Respondent registered <lpploans.com>, <opplozns.com>, <opploahs.com>, <opploansd.com>, <opploanx.com>, <hopploans.com>, <opploajs.com>, <op-loans.com>, <opploansn.com>, and <opploanse.com> knowing that Complainant had trademark rights in the OPPLOANS mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s evident targeting of Complainant’s OPPLOANS trademark by registering multiple confusingly similar domain names. Respondent’s prior knowledge of Complainant's OPPLOANS trademark further indicates that Respondent registered and used <lpploans.com>, <opplozns.com>, <opploahs.com>, <opploansd.com>, <opploanx.com>, <hopploans.com>, <opploajs.com>, <op-loans.com>, <opploansn.com>, and <opploanse.com> in 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").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lpploans.com>, <opplozns.com>, <opploahs.com>, <opploansd.com>, <opploanx.com>, <hopploans.com>, <opploajs.com>, <op-loans.com>, <opploansn.com>, and <opploanse.com> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 30, 2022
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