Opportunity Financial, LLC v. Dylan Smith
Claim Number: FA2304002040094
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Janet J. Lee of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Dylan Smith (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opploansyes.com> (the “disputed domain name”), registered with Name.com, Inc. (the “Registrar”).
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.
Complainant submitted a Complaint to Forum electronically on April 14, 2023; Forum received payment on April 14, 2023.
On April 18, 2023, the Registrar confirmed by e-mail to Forum that the <opploansyes.com> 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 April 19, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 9, 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@opploansyes.com. Also on April 19, 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 May 12, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Lynda M. Braun 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant offers financial services and personal short-term installment loans. Complainant has rights in the OPPLOANS trade mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., United States Registration No. 5,042,920, registered on September 13, 2016, with first use in commerce of January 12, 2010) (hereinafter referred to as the “OPPLOANS Mark”).. Complainant contends that Respondent’s disputed domain name is virtually identical and confusingly similar to Complainant’s OPPLOANS Mark because it incorporates the OPPLOANS Mark in its entirety and adds the term “yes” and the “.com” generic top-level domain (“gTLD”).
Complainant also claims that Respondent has no legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized, licensed or otherwise permitted Respondent to use the OPPLOANS Mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a webpage in which Respondent attempts to pass off and compete with Complainant.
Finally, Complainant contends that Respondent registered and is using the disputed domain name in bad faith. Respondent registered the disputed domain name to impersonate Complainant and divert customers to Respondent’s website for commercial gain. Respondent also registered the disputed domain name with actual knowledge of Complainant’s rights in the OPPLOANS Mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that Complainant has registered trademark rights in the OPPLOANS Mark. The Panel also finds that the disputed domain name is confusingly similar to the Complainant’s OPPLOANS Mark, that 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.
is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity. Finally, the Panel finds that Respondent uses the disputed domain name to impersonate Complainant with a website that competes 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 disputed domain name should be cancelled or transferred:
(1) the disputed 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 disputed domain name; and
(3) 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”).
The Panel finds that Complainant has rights in the OPPLOANS Mark per Policy paragraph 4(a)(i) through its registration of the mark with the USPTO (e.g., United States Registration No., 2,736,744). Registration of a mark with the USPTO confers upon a complainant trademark rights for purposes of the Policy paragraph 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
The Panel further finds that Respondent’s disputed domain name is confusingly similar to Complainant’s OPPLOANS Mark as it consists of the entirety of the OPPLOANS Mark followed by the term “”yes”, and then followed by the gTLD “.com”. The addition of a term and a gTLD fail to distinguish a disputed domain name from a trademark per Policy paragraph 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (confusing similarity exists where a disputed domain name contains a complainant’s entire mark and differs only by the addition of a term and gTLD; the differences between the domain name and its incorporated trademark are insufficient to differentiate one from the other for purposes of the Policy).
Accordingly, the Panel finds that Policy paragraph 4(a)(i) has been established by Complainant.
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy paragraph 4(a)(ii), and then the burden shifts to Respondent to show that it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). Here, the Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain name as Respondent has not provided evidence nor proven that it is not commonly known by the disputed domain name, nor has Complainant authorized, licensed or otherwise permitted Respondent to use the OPPLOANS Mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant.
Further, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to impersonate Complainant as the disputed domain name redirects to a website with competing financial services. This alone is sufficient to show Respondent’s bad faith registration and use of the disputed domain name. See Opportunity Financial, LLC v. Dylan Smith, FA2 207002006507 (Forum Aug. 25, 2022) (“Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at issue domain name.”); Opportunity Financial, LLC v. Warut Chuaynoo, FA 2204001994278 (Forum June 2, 2022) (holding respondent’s “actual knowledge of Complainant’s rights is evident from the notoriety of Complainant’s trademark” and indicates Respondent’s bad faith under the Policy).
Moreover, Respondent also purports to impersonate or pass off as Complainant through its use of a fraudulent webpage bearing Complainant’s logo and OPPLOANS Mark. 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 paragraphs 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy paragraph 4(c)(i) or for a legitimate noncommercial or fair use per Policy paragraph 4(c)(iii) where the disputed domain name directed to a website featuring complainant’s mark and various photographs related to the complainant’s business).
Here, Complainant has provided evidence of similarities between the disputed domain name and Complainant’s authentic webpage, including Respondent’s use of Complainant’s logo and mark, and contends that Respondent offers competing and fraudulent financial services. Therefore, the Panel concludes that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy paragraph 4(c)(i) or (iii).
Accordingly, the Panel finds that Policy paragraph 4(a)(ii) has been established by Complainant.
The Panel finds that, based on the record, the Complainant has demonstrated the existence of Respondent’s bad faith registration and use pursuant to paragraph 4(b) of the Policy.
First, Respondent attracts Internet users for commercial gain by using the disputed domain name to pass itself off as Complainant and to disrupt Complainant’s business, indications of bad faith. Passing off as Complainant for commercial gain demonstrates bad faith under Policy paragraph 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy paragraph 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy paragraphs 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”).
Here, Respondent is engaging in the impersonation of Complainant by competing with Complainant’s services offered on its website and using Complainant’s OPPLOANS Mark and logo on Respondent’s website, with the only conceivable explanation being to engage in nefarious conduct and deceive users.
Second, the panel finds that Respondent registered the disputed domain name in bad faith because Respondent registered the disputed domain name with actual knowledge of Complainant's rights in the OPPLOANS Mark. Actual knowledge of a complainant’s mark prior to registering a disputed domain name is sufficient to establish bad faith under Policy paragraph 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014); See also Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 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.”); see also Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Here, Respondent has done this with full knowledge of Complainant’s business and trademarks. Thus, the Panel finds that Respondent registered and is using the disputed domain name in bad faith.”).
Finally, the fame of the OPPLOANS Mark, which was used and registered by Complainant in advance of Respondent’s registration of the disputed domain name, renders it wholly implausible that Respondent created the disputed domain name independently. Moreover, where a disputed domain name is so obviously connected with a well-known name, product or service, its use by someone with no connection to the name, product or service indicates bad faith. Therefore, the Panel concludes that Respondent had actual knowledge of Complainant’s rights in the OPPLOANS Mark, and this constitutes bad faith under Policy paragraph 4(a)(iii). It therefore strains credulity to believe that Respondent had not known of the Complainant or its OPPLOANS Mark when registering the disputed domain name. Thus, as here, prior knowledge of a complainant’s trademark before registering a domain name is sufficient to find bad faith under Policy paragraph (a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (finding actual knowledge due to the domain name chosen and the use made of it).
Accordingly, the Panel finds that Policy paragraph 4(a)(iii) has been established by 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 <opploansyes.com> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: May 23, 2023
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