Oportun, Inc. v. Bheem Mak
Claim Number: FA2211002021236
Complainant is Oportun, Inc. (“Complainant”), represented by Marta Miyar Palacios of Oportun, Inc., US. Respondent is Bheem Mak (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oportuncard.org>, registered with Ledl.net GmbH.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on November 21, 2022. Forum received payment on November 21, 2022.
On Nov 22, 2022, Ledl.net GmbH confirmed by e-mail to Forum that the <oportuncard.org> domain name is registered with Ledl.net GmbH and that Respondent is the current registrant of the name. Ledl.net GmbH has verified that Respondent is bound by the Ledl.net GmbH registration agreement, which is in German, 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 November 28, 2022, Forum served the Complaint and all Annexes, including an English and German Written Notice of the Complaint, setting a deadline of December 19, 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@oportuncard.org. Also on November 28, 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 December 22, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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.
Preliminary Issue: Language of Proceeding
As noted, the Ledl.net GmbH. registration agreement is in German. Pursuant to Rule 11(a), the language of the proceeding in relation to the <oportuncard.org> domain name shall be German unless otherwise determined by the Panel, having regard to the circumstances of the 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 the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
Complainant, Oportun, Inc., is a leading technology-powered provider of consumer financial services. It lends money, provides credit cards and other financial services to hardworking, low-to-moderate income individuals to help them move forward in their lives, demonstrate creditworthiness, and establish the credit history they need to access new opportunities.
Complainant has rights in the OPORTUN word mark through registration with the United States Patent and Trademark Office (“USPTO”). It also has rights to the word and design mark . Respondent’s <oportuncard.org> domain name is confusingly similar to Complainant’s OPORTUN word mark.
Respondent lacks rights and legitimate interests in the <oportuncard.org> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use its OPORTUN mark in the domain name. Respondent does not use the domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead creates a false impression of affiliation with Complainant while diverting users who are seeking Complainant’s website.
Respondent registered and uses the <oportuncard.org> domain name in bad faith. Respondent’s website is used to mislead consumers seeking to find Complainant’s website regarding its credit card products. Consumers reaching Respondent’s website receive inaccurate information regarding Complainant and its products; are redirected to provide their credentials to Respondent if they need “help”; and are directed to download an app that is not affiliated with Complainant. Hence Respondent phishes for customers’ information while using a privacy service to hide its identity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 has shown that it has rights in the OPORTUN word mark through registration with the USPTO (e.g. Reg. No. 4,999,048, registered on July 12, 2016). It also has rights to the word and design mark through several registrations, including in Brazil, Reg. No. 909548889, registered on May 29, 2018.
The Panel finds Respondent’s <oportuncard.org> domain name to be confusingly similar to Complainant’s word mark as it incorporates the mark in its entirety while adding the term “card”, which does nothing to distinguish the domain name from the mark, and the “.org” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <oportuncard.org> domain name was registered on August 16, 2022.
several years after Complainant registered its OPORTUN mark. It resolves to a website prominently displaying Complainant’s OPORTUN word mark and its word and design mark and offering “Oportune credit cards” to Internet users who provide personal information through a login portal.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <oportuncard.org> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
The four illustrative circumstances set out in paragraph 4(b) of the Policy as evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) are not exclusive.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainants’ OPORTUN mark when Respondent registered the <oportuncard.org> domain name and that Respondent has registered and is using the domain name in bad faith for the purpose of obtaining sensitive information by impersonating Complainant.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <oportuncard.org> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: December 23, 2022.
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