Opportunity Financial, LLC v. Host Master / 1337 Services LLC
Claim Number: FA2209002014146
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Janet J. Lee of Banner & Witcoff, Ltd., Illinois, US. Respondent is Host Master / 1337 Services LLC (“Respondent”), KN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <0ppl0ans.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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to Forum electronically on September 29, 2022; Forum received payment on September 29, 2022.
On September 30, 2022, Tucows Domains Inc. confirmed by e-mail to Forum that the <0ppl0ans.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 October 3, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 24, 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@0ppl0ans.com. Also on October 3, 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 November 1, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Bruce E. Meyerson 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
1. Complainant, Opportunity Financial, LLC, operates as a financial services company that provides short-term installment loans. Complainant claims rights in the OPPLOANS mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,042,920, registered September 13, 2016).
2. Respondent’s <0ppl0ans.com>[1] domain name incorporates Complainant’s OPPLOANS mark in its entirety, except for the replacement of the letters “O” in the OPPLOANS mark with numerical zeros, and adds the “.com” generic top-level domain (“gTLD”) to form.
3. Respondent lacks rights or legitimate interests in the <0ppl0ans.com> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use its mark in the domain name.
4. Respondent is not using the domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead passes off as Complainant.
5. Respondent registered and uses the <0ppl0ans.com> domain name in bad faith. Respondent attracts users for commercial gain while passing off as Complainant to phish for user information.
6. Additionally, Respondent registered the domain name with actual knowledge of Complainant’s rights in the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the OPPLOANS mark. Respondent’s domain name is confusingly similar to Complainant’s OPPLOANS mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <0ppl0ans.com> domain name and that Respondent registered and uses the domain name in bad faith.
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 mark through its registration with the USPTO (e.g., Reg. No. 5,042,920, registered September 13, 2016). Registration with the USPTO is generally sufficient in demonstrating rights in a mark 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, Complainant has rights in the OPPLOANS mark under Policy ¶ 4(a)(i).
Complainant argues the <0ppl0ans.com> domain name is identical or confusingly similar to Complainant’s OPPLOANS mark. Under Policy ¶ 4(a)(i), incorporating a protected mark in its entirety with the difference of only one letter to create a visually similar mark is generally not sufficient in distinguishing a domain name from a protected mark. See Intelius, Inc. v. Hyn, FA 703175 (Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar). Further, the addition of a gTLD is generally considered irrelevant in determining whether a disputed domain name is identical to a protected mark. See Abt Elecs., Inc. v. Ricks, FA 904239 (Forum Mar. 27, 2007) (“The Panel also finds that Respondent’s <abt.com> domain name is identical to Complainant’s ABT mark since addition of a generic top-level domain (“gTLD”) is irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). Respondent’s <0ppl0ans.com> domain name incorporates Complainant’s OPPLOANS mark in its entirety, except for the replacement of the letters “O” in the OPPLOANS mark with numerical zeros, and adds the “.com” gTLD. Therefore, Respondent’s domain name is identical or confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <0ppl0ans.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.) The Panel holds that Complainant has made a prima facie case.
Complainant contends Respondent lacks rights or legitimate interests in the <0ppl0ans.com> domain name because Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed to Respondent any rights in the OPPLOANS mark. Under Policy ¶ 4(c)(ii), information in the record that reveals that a registrant’s name is materially different from the domain name may be used to determine that a respondent is not commonly known by the 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 mark may indicate that the respondent is not commonly known by a 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 and other information on the record does not indicate that Respondent is commonly known as “OPPLOANS”, nor “0PPL0ANS”. Additionally, there is no evidence to suggest that Respondent was authorized to use Complainant’s OPPLOANS mark in the <0ppl0ans.com> domain name. Therefore, the Panel holds that Respondent is not commonly known by the <0ppl0ans.com> domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent uses the <0ppl0ans.com> domain name in order to pass off as 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 <0ppl0ans.com> domain name’s resolving webpage to impersonate Complainant through offering competing loan services under Complainant’s OPPLOANS mark. Thus, the Panel holds that Respondent does not use the <0ppl0ans.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).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent uses and registered the <0ppl0ans.com> domain name in a bad faith attempt to perpetuate a phishing scheme. Using a domain name incorporating the mark of another to fraudulently phish for information is evidence of bad faith pursuant to Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”). The record supports Complainant’s assertion that Respondent uses the <0ppl0ans.com> domain name to attempt to extract valuable personal information from users with the use of the goodwill associated with Complainant’s mark. Thus, the Panel holds that Respondent uses and registered the domain name in bad faith in order to facilitate a phishing scheme under Policy ¶ 4(a)(iii).
Furthermore, Complainant asserts that Respondent registered the <0ppl0ans.com> domain name with actual knowledge of Complainant’s rights in the OPPLOANS mark. Actual notice may be determined by looking at the respondent’s specific use of the mark, 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 mark is entirely incorporated in Respondent’s <0ppl0ans.com> domain name and Respondent uses the domain. Therefore, the Panel holds that Respondent had actual knowledge of Complainant’s rights in the OPPLOANS mark under Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied 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 <0ppl0ans.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: November 14, 2022
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