QC Holdings, Inc. v. Basto Rayel
Claim Number: FA2209002012459
Complainant is QC Holdings, Inc. (“Complainant”), represented by Bradley P. Hartman of Hartman Titus PLC, Arizona, USA. Respondent is Basto Rayel (“Respondent”), Thailand.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lendnation.credit>, (‘the Domain Name’) registered with NameCheap, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on September 16, 2022; Forum received payment on September 16, 2022.
On September 18, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <lendnation.credit> 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 September 19, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 11, 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@lendnation.credit. Also on September 19, 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 14, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the trade mark LENDNATION registered, inter alia, in the USA for financial services with first use recorded as 2014.
The Domain Name registered in 2022 is identical to the Complainant’s mark for the purposes of the Policy adding only the gTLD “.credit”.
The Respondent does not have rights or a legitimate interest in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name resolves to a web site offering competing loan services targeted at US citizens where the Complainant is established. Reports on the Internet suggest the Respondent is associated with scam web sites and has links to Iceland and Thailand, but no businesses called LENDNATION are registered in these countries. This is not a bona fide offering of goods or services or a legitimate non commercial or fair use. It is registration and use in bad faith, causing confusion for commercial gain and disrupting the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark LENDNATION registered, inter alia, in the USA for financial services with first use recorded as 2014.
The Domain Name registered in 2022 is being used for a site offering competing loan services to citizens in the USA where the Complainant is established and appears to be connected with phishing.
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 Domain Name consists of the Complainant's LENDNATION (which is registered, inter alia, in the USA for financial services and has been used since 2014) and the gTLD “.credit”.
The gTLD “.credit” does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is identical for the purposes of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).The purpose of the Respondent’s web site is commercial and so cannot be non commercial legitimate fair use.
The web site attached to the Domain Name uses the Complainant’s mark to purport to offer competing services in the jurisdiction where the Complainant is established. The Panel finds this use is deceptive and that the Respondent is impersonating the Complainant. As such it cannot amount to the bona fide offering of goods and services. See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is 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).”).
There is some evidence that the Respondent has been associated with scam sites on the Internet. The lack of any evidence that legitimate businesses called LENDNATION exist in Thailand or Iceland the jurisdiction with which the Respondent appears to be associated and the purporting to offer services in the USA where the Complainant is based also suggests that the purpose of the site is phishing which cannot be a bona fide offering of goods and services or a legitimate non commercial fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (finding that ‘Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate non commercial or fair use’).
The Respondent has not answered this Complaint or provided any explanation to rebut the prima facie case presented by the Complainant as set out above.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is deceptive and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it uses the Complainant’s mark as a masthead to purport to offer competing services to citizens of the USA where the Complainant is based appearing to impersonate the Complainant.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site or services offered on it likely to disrupt the business of the Complainant. See Allianz of AM. Corp v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
Further phishing to collect personal information is evidence of bad faith registration and use within the Policy 4(a)(iii). See Wells Fargo & Co. v. Mihael, FA 605221 (Forum Jan. 16, 2006); see also Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lendnation.credit> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: October 18, 2022
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