Opportunity Financial, LLC v. James Slavin
Claim Number: FA2301002027576
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Janet J. Lee of Banner & Witcoff, Ltd., Illinois, USA. Respondent is James Slavin (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opploans2023.com>, registered with NameCheap, 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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on January 14, 2023; Forum received payment on January 13, 2023.
On January 16, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <opploans2023.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 January 17, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 6, 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@opploans2023.com. Also on January 17, 2023, 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 February 10, 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 is a financial services company that provides personal short-term installment loans. Complainant has rights in the OPPLOANS mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,042,920, registered September 13, 2016). The disputed domain name is confusingly similar to Complainant’s OPPLOANS mark because the only difference between Complainant’s mark and the disputed domain name is the addition of the numerals “2023” and the generic top-level domain (“gTLD”) “.com”.
ii) Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Respondent is not using the disputed domain name in connection with any bona fide offering of goods and services or for any legitimate or fair use. Instead, Respondent is passing itself off as Complainant.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent is passing off as Complainant in furtherance of a phishing scheme. Respondent is creating a likelihood of confusion with respect to Complainant’s OPPLOANS mark. Additionally, Respondent had actual knowledge of Complainant’s rights in the OPPLOANS mark prior to registration of the disputed domain name.
B. Respondent
Respondent did not submit a Response in this proceeding.
1. The disputed domain name was registered on November 21, 2022.
2. Complainant has established rights in the OPPLOANS mark based upon registration with the USPTO (e.g., Reg. No. 5,042,920, registered September 13, 2016).
3. Respondent is passing itself off as Complainant. The disputed domain name’s resolving webpage displays Complainant’s mark and offers financial services, which are similar to those of 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”).
Complainant asserts rights in the OPPLOANS mark based upon registration with the USPTO (e.g., Reg. No. 5,042,920, registered September 13, 2016). Registration with a governmental trademark authority is sufficient to demonstrate rights in a mark per Policy 4(a)(i). Accordingly, the Panel finds that Complainant has rights in the OPPLOANS mark per Policy ¶ 4(a)(i).
Complainant argues the disputed domain name <opploans2023.com> is confusingly similar to Complainant’s OPPLOANS mark. The addition of numerals and a gTLD may not defeat an argument of confusing similarity per Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic top-level domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Here, the only difference between the Complainant’s mark and the disputed domain name is the addition of the numerals “2023” and the “.com” gTLD. Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per 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 contends that Respondent lacks rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the OPPLOANS mark. Where there is no response, WHOIS information can substantiate a finding that a respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). In addition, a lack of authorization to use a complainant’s mark may also indicate that a respondent is not commonly known by the disputed domain name. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”).The unmasked WHOIS information of record lists “James Slavini” as the registrant of the disputed domain name. The Panel therefore finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for any legitimate or fair use because Respondent is using the disputed domain name to pass itself off as Complainant. Passing off is not a bona fide offering of goods and services or a legitimate or fair use per Policy ¶ 4(c)(i) and (iii). See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”). Here, Complainant provides a screenshot of the disputed domain name’s resolving webpage displaying Complainant’s mark and offering similar financial services. Therefore, the Panel finds Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for any legitimate or fair use under Policy ¶ 4(c)(i) and (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 that, because Respondent registered and uses the disputed domain name in order to obtain sensitive personal information, Respondent has registered and used the disputed domain name in bad faith. Attempts to pass off with a complainant’s services in furtherance of a phishing scheme is evidence of bad faith under Policy ¶4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). The Panel recalls that Complainant provides a screenshot of the disputed domain name’s resolving website, which claims to offer the chance to “Get Your Personal Loan Up to $5000” when users submit personal contact information, including an email address and social security number. Accordingly, the Panel finds Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant further contends that Respondent registered and uses the disputed domain name with actual knowledge of Complainant’s rights in the OPPLOANS mark. Constructive knowledge is insufficient for a finding of bad faith registration of a disputed domain name; actual knowledge, however, is sufficient for a finding of bad faith per Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Here, Complainant asserts Respondent had actual knowledge of Complainant’s rights in the OPPLOANS mark based on the Respondent’s use of the disputed domain name to direct to a website that purports to offer identical services to those of Complainant. The Panel infers, due to the manner of use of the disputed domain name that Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the OPPLOANS mark, which constitutes bad faith registration of the disputed domain name per 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 <opploans2023.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: February 15, 2023
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