CreditNinja Lending, LLC v. Theodor Hansen
Claim Number: FA2212002023513
Complainant is CreditNinja Lending, LLC (“Complainant”), USA, represented by Gregory J. Chinlund of Marshall, Gerstein & Borun LLP, Illinois. Respondent is Theodor Hansen (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ninjacreditusa.com>, registered with Internet Domain Service BS Corp.
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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on December 9, 2022; Forum received payment on December 9, 2022.
On December 14, 2022, Internet Domain Service BS Corp confirmed by e-mail to Forum that the disputed domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 December 16, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 5, 2023 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@ninjacreditusa.com. Also on December 16, 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 January 6, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. 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
i) Complainant,
CreditNinja Lending, LLC provides financial services. Complainant
asserts rights in the CREDITNINJA mark based upon registration with the United
States Patent and Trademark Office (“USPTO”) (e.g., Reg. no. 5,846,273,
registered August 27, 2019). The disputed domain name is confusingly similar
to Complainant’s CREDITNINJA trademark because it includes the mark in its
entirety but inverts the words “CREDIT” and NINJA, and adds the geographic term
“USA” and the generic top-level domain name (“gTLD”) “.com”.
ii) Respondent
does not have rights or legitimate interests in the disputed domain
name. Respondent is not licensed or authorized to use Complainant’s CREDITNINJA
mark and is not commonly known by the disputed domain name. Respondent also
does not use the disputed domain name for any bona fide offering of
goods or services or legitimate noncommercial or fair use. Respondent attempts
passing off as Complainant.
iii) Respondent
registered and uses the disputed domain name in bad faith. Respondent
disrupts Complainant’s business. Respondent creates a likelihood of confusion
with Complainant as an attraction for commercial gain. Respondent attempts
passing off as Complainant. Respondent had actual knowledge of Complainant’s
rights in the CREDITNINJA mark.
B. Respondent
Respondent did not submit a Response in this proceeding.
1. The disputed domain name was registered on April 26, 2022.
2. Complainant has established rights in the CREDITNINJA mark based upon registration with the USPTO (e.g., Reg. no. 5,846,273, registered August 27, 2019).
3. The disputed domain name’s resolving webpage features Complainant’s inverted mark and offers competing financial services.
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 asserts rights in the CREDITNINJA mark based upon registration with the USPTO (e.g., Reg. no. 5,846,273, registered August 27, 2019). Registration of a mark with the USPTO is considered a valid showing of rights under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”); see also Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Since Complainant has provided evidence of registration of the CREDITNINJA mark with the USPTO, the Panel finds that Complainant has established rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name <ninjacreditusa.com> is confusingly similar to Complainant’s CREDITNINJA trademark because it includes the mark in its entirety but inverts the words “credit” and “ninja”, and adds the geographic term “usa” and the gTLD “.com”. Inverting the words in a mark and adding geographic terms and gTLDs are not sufficient to overcome a finding of confusing similarity under Policy ¶ 4(a)(i). See PFIP, LLC v. Planet Fitness / Fitness Blowout , FA 1491578 (Forum May 10, 2013) (finding the inversion of the terms of Complainant’s PLANET FITNESS mark in the <fitnessplanetonline.com> domain name unavailing in avoiding a finding of confusing similarity.); see also Franklin Covey Co. v. franklincoveykorea, FA 1774660 (Forum Apr. 11, 2018) (finding that the <franklincoveykorea.com> domain name is confusingly similar to the FRANKLIN COVEY mark, as “[t]he addition of a geographic term and a gTLD do not negate confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i).”). Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s CREDITNINJA mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then 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 argues that Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not licensed or authorized to use Complainant’s CREDITNINJA mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed 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 unmasked WHOIS information for the disputed domain name lists the registrant as “Theodor Hansen.” Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant contends Respondent also does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent attempts passing off as Complainant. Attempts to pass off as a complainant is not 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). See Nokia Corp. v. Eagle, FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)). Complainant provides screenshots of the disputed domain name’s resolving webpage, showing use of Complainant’s inverted mark and offerings of competing financial services. Thus, the Panel finds Respondent does not provide 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).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues Respondent registered and uses the disputed domain name in bad faith by offering competing financial services, which disrupts Complainant’s business. Registration of a domain name primarily for the purpose of disrupting the business of a competitor constitutes evidence of registration and use in bad faith under Policy 4(b)(iii). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum January 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)). The Panel recalls Complainant provides screenshots of the disputed domain name’s resolving webpage, showing use of Complainant’s inverted mark and offerings of competing financial services. Thus, the Panel finds Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iii).
Complainant contends Respondent attempts passing off as Complainant. Passing off as a complainant evidences bad faith under Policy ¶ 4(b)(iv). See Amazon Technologies, Inc. v. jaskima smith, FA 1750160 (Forum Oct. 26, 2017) (finding the respondent registered and used the disputed domain name in bad faith to pass off as the complainant in an attempt to gain personal information from users who mistakenly access the website). The Panel references that Complainant provides screenshots of the disputed domain name’s resolving webpage, showing use of Complainant’s inverted mark and offerings of competing financial services. Thus, the Panel finds Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant argues Respondent had actual knowledge of Complainant’s rights in the CREDITNINJA mark because Respondent offers competing financial services. Per Policy ¶ 4(a)(iii), actual knowledge of a complainant’s trademark rights is sufficient to establish bad faith and can be demonstrated by the use the respondent makes of the domain name. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum January 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”). The Panel infers, due to the manner of use of the disputed domain name, i.e., passing off as Complainant that Respondent had knowledge of Complainant’s rights in the CREDITNINJA mark at the time of its registering the disputed domain name, and finds that Respondent registered the disputed domain in bad faith under 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 <ninjacreditusa.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: January 7, 2023
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