CreditNinja Lending, LLC v. James Slavin
Claim Number: FA2210002017053
Complainant is CreditNinja Lending, LLC (“Complainant”), United States of America (“United States”), represented by Gregory J. Chinlund of Marshall, Gerstein & Borun LLP, United States. Respondent is James Slavin (“Respondent”), United States/
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <creditninja.loans> (the “disputed domain name”), registered with Name.com, Inc (the “Registrar”).
PANEL
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.
Lynda M. Braun as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on October 21, 2022; Forum received payment on October 21, 2022.
On Oct 24, 2022, the Registrar confirmed by e-mail to Forum that the <creditninja.loans> disputed domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. The Registrar has verified that Respondent is bound by the Name.com, 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 27, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 16, 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@creditninja.loans. Also on October 27, 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 April 21, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Lynda M. Braun.
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.
Through continuous and extensive use since its adoption, Complainant’s registered trademarks have achieved widespread recognition and have become a hallmark of its domestic goodwill. Complainant’s registrations cover, in part, the following closely-related services: consumer lending services, installment loans, providing personal loans and lines of credit, and credit counseling services.
Respondent registered the <creditninja.loans> disputed domain name on July 20, 2021 - more three years after Credit Ninja first began using its CREDITNIJNA trademark and more than three years after Complainant registered its <creditninja.com> official domain name. Respondent uses the <creditninja.loans> disputed domain name to confuse consumers into thinking that the services emanate from or are associated with Complainant’s CREDITNINJA trademark.
RELIEF SOUGHT
Complainant requests that the disputed domain name be transferred from Respondent to Complainant.
PARTIES' CONTENTIONS
A. Complainant
Complainant is an online financial services platform offering personal and installment loans, credit, and lending under the CREDITNINJA trademark. Complainant owns several CREDITNINJA registered trademarks through the United States Patent and Trademark Office (“USPTO”) (e.g., CREDITNINJA, United States Registration No. 5,846,273, registered on August 27, 2017, in International Class 36, including, consumer lending services, installment loans, providing personal loans and lines of credit, and credit counseling services) (hereinafter collectively referred to as the “CREDITNINJA Mark”).
The CREDITNINJA Mark has acquired valuable goodwill and a prominent reputation and is widely recognized by the consuming public as a designation of the source of the goods and services of Complainant in the United States. On December 18, 2017, Complainant also registered its official <creditninja.com> domain name to advertise and promote its goods and services. Through continuous and extensive use since its adoption, Complainant’s registered trademarks have achieved widespread recognition and have become a hallmark of its domestic goodwill.
Complainant claims that Respondent’s disputed domain name is identical or confusingly similar to Complainant’s CREDITNINJA Mark because it incorporates the trademark in its entirety, only appending the generic Top-Level Domain (gTLD) “.loans”, which is related to Complainant’s services.
Complainant also claims that Respondent lacks any rights or legitimate interest in the disputed domain name because Complainant’s use predates any rights Respondent may have when it registered the disputed domain name on July 20, 2021, and the name uses the entirety of Complainant’s Mark. Respondent also has not made a bona fide offering of goods or services and does not make a legitimate noncommercial or fair use of the disputed domain name, as Respondent is attempting to pass itself off as Complainant on the resolving site. Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the CREDITNINJA Mark, indicating bad faith.
The disputed domain name was registered on July 20, 2021 and resolves to a webpage purporting to offer loans to customers online. In an attempt to confuse consumers into thinking that the services offered via the disputed domain name are those of Complainant, Respondent refers to itself as <creditninja.com> at several points on its website.
Finally, Complainant also contends that Respondent registered and is using the disputed domain name in bad faith by seeking to pass off as Complainant, offering competing services, disrupting Complainant’s business by misleading consumers, all for commercial gain, and has a demonstrated pattern of bad faith registration through cybersquatting on numerous other domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
The Panel finds that Complainant has registered trademark rights in the CREDITNINJA Mark. The Panel also finds that the disputed domain name is identical to the Complainant’s CREDITNINJA Mark, Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith.
DISCUSSION
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 disputed domain name should be cancelled or transferred: the disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and Respondent has no rights or legitimate interests in respect of the disputed domain name; and the disputed 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”).
Identical and/or Confusingly Similar
Complainant has rights to the CREDITNINJA Mark through its registrations with the USPTO (e.g., United States Registration No. 5,846,273, registered on August 27, 2017, in International Class 36, including, consumer lending services, installment loans, providing personal loans and lines of credit, and credit counseling services. Registration of a mark with a trademark agency such as the USPTO is generally sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrates its rights in such mark for the purpose of Policy ¶ 4(a)(i).”).
Here, Complainant has provided the Panel with copies of its USPTO registrations for the CREDIT NINJA Mark. Therefore, the Panel finds that Complainant has rights in the CREDITNINJA Mark per Policy ¶ 4(a)(i).
The Panel also concludes that the disputed domain name is identical to Complainant’s CREDITNINJA Mark. They both contain Complainant’s entire trademark, except Respondent uses the “.loans” gTLD.
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
Rights or Legitimate Interests
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. Under the Policy, Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum April 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”).
In this case, Respondent did not carry its burden to come forward with evidence of its rights or legitimate interests in the disputed domain name as it did not submit a response to the Complaint, but given the facts of this case, the Panel finds that Respondent would have been hard pressed to furnish availing arguments had it chosen to respond.
In support, the Panel finds that Respondent is not commonly known by the disputed domain name or any name similar to it, nor has Complainant authorized or licensed Respondent to use its CREDITNINJA Mark in the disputed domain name. In addition, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. In particular, the Panel concludes that Respondent does not use the disputed domain name for a bona fide offering of goods and services or legitimate noncommercial or fair use because the resolving website is one that passes off as Complainant’s, even using Complainant’s Mark and domain name as its own. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.
Finally, an attempt by a respondent to pass itself off as an affiliate of the complainant under false pretenses may support a finding of failure to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
Registration and Use in Bad Faith
The Panel concludes that Respondent registered and is using the disputed domain name in bad faith.
First, the use of a disputed domain name to intentionally attempt to attract Internet users to a respondent’s website or online location by creating a likelihood of confusion or a false association with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website or online location demonstrates registration and use in bad faith. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006). Therefore, the Panel concludes that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Second, Respondent’s registration and use of the disputed domain name to pass itself off as Complainant does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i). To the contrary, Respondent’s use of the disputed domain name as a webpage to purportedly offer financial and loan services to pass off as Complainant demonstrates that Respondent is either attempting to pass itself off as Complainant or another competing loan services company. UDRP cases have consistently held that passing off as a complainant does not represent a bona fide offering of goods. See KMD Partners, LLC v. Jecaterina Dvorjanska / James Slavin, FA1973392 (Forum Dec. 27, 2021) (ordering transfer of <creditninja.loan> and <creditninja.me> from Respondent to Complainant).
Respondent’s unlawful actions indicate that Respondent uses a disputed domain name that prominently features the CREDITNINJA trademark to misrepresent itself as Complainant. Respondent attempts to profit from the unauthorized use of the marks and lure traffic from Complainant’s website. Accordingly, the Respondent’s unauthorized use of the CREDITNINJA Mark, and its attempt to pass itself off as Complainant cannot be deemed a bona fide offering of goods or services under Policy ¶ 4(c)(i).
Finally, the Panel also holds that the Respondent has engaged in a pattern of cybersquatting by registering third-party infringing domain names, demonstrating evidence of bad faith pursuant to Policy 4(b)(ii). Here, Respondent has been the subject of at least 4 other UDRP proceedings. In each of those proceedings, Respondent was found to have registered the disputed domain name at issue, which was nearly identical to the Complainant’s trademark, in bad faith and the disputed domain name was subsequently transferred to the Complainant.
Accordingly, the Panel finds that Policy ¶ 4(a)(iii has been established by Complainant.
DECISION
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <creditninja.loans> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: December 1, 2022
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