Opportunity Financial, LLC v. Udomsak Sucharitakul
Claim Number: FA2209002014150
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Janet J. Lee of Banner & Witcoff, Ltd., US. Respondent is Udomsak Sucharitakul (“Respondent”), Thailand.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oppreloans.com>, registered with URL Solutions, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to Forum electronically on September 29, 2022; Forum received payment on September 29, 2022.
On Sep 30, 2022, URL Solutions, Inc. confirmed by e-mail to Forum that the <oppreloans.com> domain name is registered with URL Solutions, Inc. and that Respondent is the current registrant of the name. URL Solutions, Inc. has verified that Respondent is bound by the URL Solutions, 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@oppreloans.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 October 31, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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. Respondent’s <oppreloans.com> domain name is confusingly similar to Complainant’s OPPLOANS mark.
2. Respondent does not have any rights or legitimate interests in the <oppreloans.com> domain name.
3. Respondent registered and uses the <oppreloans.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Opportunity Financial, LLC, is a financial services company that holds a registration for the OPPLOANS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 5,042,920, registered September 13, 2016).
Respondent registered the <oppreloans.com> domain name on June 10, 2022, and uses it pass off as Complainant and to compete with Complainant.
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”).
Respondent’s <oppreloans.com> domain name uses Complainant’s OPPLOANS mark and adds the letters “r” and “e”, and adds the “.com” gTLD. These changes are not sufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See OpenTable, Inc. v. Above.com Domain Privacy, FA 1626187 (Forum Aug. 10, 2015 (“Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter ‘i’ . . . ”); see also 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.”) Therefore, the Panel finds that Respondent’s <oppreloans.com> domain name is confusingly similar to Complainant’s OPPLOANS mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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”).
Complainant contends that Respondent lacks rights and legitimate interests in the <oppreloans.com> domain name as Respondent is not commonly known by the domain name. Complainant has not authorized or licensed to Respondent any rights in the OPPLOANS mark. The WHOIS information shows that Respondent is “Udomsak Sucharitakul.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). 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); see also 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).
Complainant further argues that Respondent does not use the <oppreloans.com> domain name for a bona fide offering of goods or services or a legitimate non-commercial or fair use, as Respondent uses it to pass off as Complainant. Impersonating a complainant is not a bona fide offering of goods or services or a legitimate non-commercial or fair use under Policy ¶¶ 4(c)(i) or (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). Complainant shows that Respondent uses the disputed domain name’s resolving webpage to pass off as Complainant and offer competing loan services. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent uses the <oppreloans.com> domain name in bad faith to divert Internet users to its website and to offer competing services. Using a disputed domain name to compete with a complainant constitutes bad faith under Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). Using a disputed domain name in order to pass off as a complainant also demonstrates bad faith under Policy ¶ 4(b)(iv). See Indeed, Inc. v. Zhiteng Sun, FA 1751940 (Forum Nov. 1, 2017) (finding that the respondent's use of <lndeed.net> to misrepresent itself as the complainant by imitating the complainant’s website design supported a finding of bad faith). Accordingly, the Panel finds bad faith under Policy ¶ 4(b)(iv).
Complainant also asserts that Respondent registered the <oppreloans.com> domain name with actual knowledge of Complainant’s rights in the OPPLOANS mark. The Panel agrees, noting that Respondent uses the disputed domain name to pass off as and compete with Complainant, and finds further bad faith under Policy ¶ 4(a)(iii). 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”).
The Panel finds that 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 <oppreloans.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: October 31, 2022
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