Funding Circle Limited v. Justin Dahlberg / us-fundingcircle
Claim Number: FA2306002050667
Complainant is Funding Circle Limited (“Complainant”), represented by Amanda L. DeFord of McGuireWoods LLP, Virginia. USA. Respondent is Justin Dahlberg / us-fundingcircle (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <us-fundingcircle.com>, registered with Tucows Domains 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on June 26, 2023; Forum received payment on June 26, 2023.
On June 27, 2023, Tucows Domains Inc. confirmed by e-mail to Forum that the <us-fundingcircle.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 June 27, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 17, 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@us-fundingcircle.com. Also on June 27, 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 July 21, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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
Complainant states that it is a well-known, well-respected company that uses its well-known FUNDING CIRCLE brand to provide a lending marketplace through which investors are able to lend money to small and medium sized businesses. Specifically, over at least the last decade, Complainant has raised funds from more than 92,000 investors, including some of the largest and most sophisticated investors around the world. Complainant then takes those funds and invests them in established, creditworthy businesses in different sectors and regions. By providing these services, Complainant gives its investors diverse investment opportunities and attractive returns while also offering small businesses fast, easy access to financing through business loans to grow their business. This unique business model has made Complainant one of the best-capitalized lending platforms in the world, with Complainant having originated more than $10.7 billion in loans to more than 81,000 businesses across the globe. In fact, Complainant and its FUNDING CIRCLE brand have been widely recognized for its valuable services, as evidenced by it being named the “Best Small Business Loan for low APR” by U.S. News & World Report in April 2019, and winning first place in the category of “Business Lending” in the Center for Financial Professionals FinTech Leaders 2020 Report. Complainant has rights in the FUNDING CIRCLE mark through its registration of the mark in the United States in 2018. The mark is registered elsewhere around the world.
Complainant alleges that the disputed domain name is virtually identical and confusingly similar to its FUNDING CIRCLE mark as it incorporates the mark in its entirety, merely adding the geographic term “us”, a hyphen, and the “.com” generic top-level-domain name ("gTLD"). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use its FUNDING CIRCLE mark. Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services, or a legitimate non commercial or fair use. Instead, the disputed domain name resolves to an inactive website and Respondent used the disputed domain name to create a fake email account used to phish for financial information. Specifically, Respondent has used the disputed domain name to send a fraudulent email to one of Complainant’s customers in the hope of prompting that customer to send a wire payment to Respondent instead of Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent is used the disputed domain name to create a fraudulent email used to phish for financial information. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights to the FUNDING CIRCLE mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark FUNDING CIRCLE and uses it to provide a lending marketplace for small and medium sized businesses.
Complainant’s rights in its mark date back to 2018.
The disputed domain name was registered in 2023.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was used in furtherance of a fraudulent email phishing scheme.
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”).
The disputed domain name incorporates Complainant’s FUNDING CIRCLE mark in its entirety, merely adding the geographic term “us”, a hyphen, and the “.com” generic top-level-domain name ("gTLD"). The addition of a geographic term, a hyphen, and a gTLD does not negate confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i). See 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).”); see also Avaya Inc. v. Evelyn Dayda / Avaya Unlimited Sources LLC, FA 1611255 (Forum May 4, 2015) (finding that as “the ‘usa’ portion of the disputed domain name is a generic geographic term, the internet user will assume that the domain name deals with the activities of Complainant in the USA and that it will lead to a website dealing with that subject. The domain name is therefore confusingly similar to the AVAYA mark and the Panel so finds.”); see also Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”). Thus the Panel finds that the <us-fundingcircle.com> domain name is confusingly similar to Complainant’s FUNDING CIRCLE mark under Policy ¶ 4(a)(i).
Respondent is not authorized or permitted to use Complainant’s FUNDING CIRCLE mark in any way and is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is known by the disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Where the WHOIS is related to the disputed domain name, the Panel may still find the respondent lacks rights or legitimate interest in the disputed domain name if the respondent lacks authorization to use the complainant’s mark and the respondent fails to provide affirmative evidence in support of its identity. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent listed itself as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name identifies the registrant as “Justin Dahlberg / us-fundingcircle” but Respondent provides no affirmative evidence in support of this identity and no evidence in the record suggests Respondent is authorized to use the FUNDING CIRCLE mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The disputed domain name does not resolve to an active website. This does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii). See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”) Therefore the Panel finds that Respondent fails to use disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Respondent used the disputed domain name to create a fake email account used to phish for financial information. Specifically, Respondent used the disputed domain name to send a fraudulent email to one of Complainant’s customers in the hope of prompting that customer to send a wire payment to Respondent instead of Complainant. This is neither a bona fide offering of goods or services per Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name); see also DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). As such, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent used the disputed domain name to pass off as Complainant through fraudulent emails. The registration and use of a disputed domain name to attempt to pass off as a complainant in furtherance of a fraudulent email phishing scheme is evidence of bad faith registration and use per Policy ¶ 4(a)(iii). See Smiths Group plc v. Snooks, FA 1372112 (Forum Mar. 18, 2011) (finding that the respondent’s attempt to impersonate an employee of the complainant was evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also Victoria’s Secret Stores Brand Mgm’t, Inc. v. Private Whois victoriasecret-use.com, FA1415313 (Forum Dec. 20, 2011) (finding bad faith under Policy ¶ 4(b)(iv) where a domain was used to send “fraudulent emails, posing as a Human Resources Manager for Victoria’s Secret and advertising purported job offers with Victoria’s Secret by directing recipients to the hiring site”). Therefore the Panel finds that Respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶¶ 4(a)(iii) and/or 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <us-fundingcircle.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 21, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page