DECISION
Elevate Credit Service, LLC v. James Slavin
Claim Number: FA2309002061667
PARTIES
Complainant is Elevate Credit Service, LLC ("Complainant"), represented by Sabrina A. Larson of Coblentz Patch Duffy & Bass LLP, California, USA. Respondent is James Slavin ("Respondent"), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <risecredit.us>, which is registered with NameCheap, Inc.
PANEL
The undersigned hereby certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on September 13, 2023; Forum received payment on September 13, 2023.
On September 14, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <risecredit.us> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 the U.S. Department of Commerce's usTLD Dispute Resolution Policy (the "Policy").
On September 14, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 4, 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 the attention of postmaster@risecredit.us. Also on September 14, 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 October 5, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the relevant communications records, the Administrative Panel (the "Panel") finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules to the usTLD Dispute Resolution Policy ("Rules"). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy and the Rules, as well as Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES' CONTENTIONS
A. Complainant
Complainant is a financial services company specializing in non-prime lending in the form of unsecured installment loans offered online at the domain name <risecredit.com>.
Complainant holds a registration for the service mark RISE, which is on file with the United States Patent and Trademark Office ("USPTO") as Registry No. 4,472,480, registered January 21, 2014.
Complainant also holds a registration for the service mark GOOD TODAY, BETTER TOMORROW, on file with the USPTO as Registry No. 5,129,950, registered January 24, 2017.
Respondent registered the domain name <risecredit.us> on June 12, 2023.
That domain name is confusingly similar to Complainant's RISE mark.
Complainant has no legal or business relationship with Respondent.
Complainant has not given any license or other authorization to the Respondent to use the RISE mark.
The website resolving from the domain name prominently displays the expression "GET A LOAN TODAY FOR A BETTER TOMMOROW," which misleadingly mimics Complainant's mark GOOD TODAY, BETTER TOMORROW.
Respondent is not employing the domain name in connection with either a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent has neither rights to nor any legitimate interest in the Domain Name.
Respondent previously registered and used the domain name <risencredit.loan>, which also incorporated Complainant's RISE mark, and which referred Internet users to other lenders operating online in competition with Complainant's business, for which Respondent was determined to have registered and used that domain name in bad faith in a decision captioned Elevate Credit Service, LLC v. James Slavin, D2021-3777 (WIPO February 4, 2022).
Respondent supplied false e-mail and mailing address information in the process of obtaining registration of the disputed domain name.
Respondent has both registered and is now using the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is now being used by Respondent in bad faith.
DISCUSSION
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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:
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered or is being used by Respondent in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy ("UDRP") and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 merely conclusory claims 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").
Identical and/or Confusingly Similar
By virtue of its registration of the RISE service mark with a national trademark authority, the USPTO, Complainant has shown that it has rights in that mark sufficient to satisfy the requirement of Policy ¶ 4(a)(i) that it demonstrate standing to pursue its claim against Respondent in this proceeding. See, for example, Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum December 28, 2018) (finding that a complainant's registration of its mark with the USPTO sufficiently confirmed its rights in that mark under Policy ¶ 4(a)(i)).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent's <risecredit.us> domain name is confusingly similar to Complainant's RISE mark. The domain name incorporates the mark in its entirety, with only the addition of the country code Top Level Domain ("ccTLD") ".us" and the generic term "credit," a direct reference to Complainant's line of business. Many panels have found that the addition of a ccTLD or other TLD to the mark of another in forming a domain name is irrelevant in determining the question of identity or confusing similarity under Policy ¶ 4(a)(i). See, for example, Blue Cross and Blue Shield Assoc. v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018):
See also Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding that adding to the mark of another a gTLD and the generic term "finance," which described a UDRP complainant's financial services business conducted under that mark, did not distinguish the resulting domain name from the mark under Policy ¶ 4(a)(i)).
Rights or Legitimate Interests
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the domain name <risecredit.us>, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See, for example, Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent's failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See, for example, Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent's failure to respond to a UDRP complaint allows a presumption that a complainant's allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the considerations set out in Policy ¶ 4(c)(i)-(iv), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the domain name that are cognizable under the Policy.
We begin by noting that there is nothing in the record before us suggesting that Respondent is the owner or beneficiary of a trademark or service mark that is identical to the <risecredit.us> domain name. We conclude, therefore, that Respondent has no claim of rights to or legitimate interests in the domain name under Policy ¶ 4(c)(i). See, for example, Pepsico, Inc. v. Becky, FA 117014 (Forum September 3, 2002), finding that, because there was no evidence showing that a respondent owned a trademark or service mark specifically reflecting a contested domain name, it could not lay claim to rights to or legitimate interests in that domain name under Policy ¶ 4(c)(i).
We also note Complainant's assertion, to which Respondent does not object, that Respondent uses the <risecredit.us> domain name to pass itself off as Complainant online in furtherance of a scheme to divert to third party lenders that directly compete with Complainant's business Internet users seeking to do business with Complainant. In the circumstances here presented, we may comfortably presume that Respondent profits from this employment of the domain name. Because such a use of the domain name was inherently illegitimate, it cannot be said that this use satisfies the express requirement of Policy ¶ 4(c)(ii) that Respondent's use of the domain name be "in connection with a bona fide offering of goods or services." See, for example, Ustream.TV, Inc. v. Vertical Axis, Inc., WIPO Case No. D2008-0598 (July 29, 2008):
It is by now well established that PPC ["pay per click"] parking pages built around a trademark . . . do not constitute a bona fide offering of goods or services pursuant to paragraph 4(c)(i) of the Policy, nor do they constitute a legitimate non-commercial or fair use pursuant to paragraph 4(c)(iii) ....
We next observe that there is nothing in the record suggesting that Respondent has been commonly known by the contested <risecredit.us> domain name. In this connection we note that the pertinent WHOIS information identifies the registrant of the domain name only as "James Slavin," which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the contested domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(iii). See, for example, Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum December 10, 2018) (concluding that a respondent was not commonly known by the domain name <appbittrex.com> where the pertinent WHOIS information listed that respondent only as "Operi Manaha.")
Finally, under this head of the Policy, because Respondent evidently employs the <risecredit.us> domain name to deceive Internet users to the detriment of Complainant, and does so for profit, we cannot conclude that Respondent is making a legitimate noncommercial or fair use of it within the meaning of Policy ¶ 4(c)(iv). See, for example, Intuit Inc. v. Whois Privacy Service/ Domain Admin c/o whois-privacy.net, D2008-0656 (WIPO July 14, 2008):
Using a confusingly similar domain name to divert traffic to the Respondent's parked site is not a bona fide offering of goods or services, nor is it a legitimate non-commercial or fair use of the domain name.
The Panel therefore finds that Complainant has amply satisfied the proof requirements of Policy ¶ 4(a)(ii).
Registration or Use in Bad Faith
We are persuaded by the evidence of record that Respondent's use of the <risecredit.us> domain name disrupts Complainant's business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent's bad faith both in registering and using the domain name. See, for example, Toyota Motor Sales, U.S.A., Inc. v. Pick Pro Parts Inc., D2005-0562 (WIPO July 20, 2005):
The Respondent confusingly employs the Complainant's marks in the Domain Names to attract Internet users to the Respondent's commercial site . . . evidently for commercial gain. This constitutes bad faith under paragraph 4(b)(iv) of the Policy.
Moreover, it is apparent from the evidence that Respondent knew of Complainant and its rights in the RISE mark when it registered the <risecredit.us> domain name. This further demonstrates Respondent's bad faith in registering it. See, for example, Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO December 18, 2000) (finding that a respondent knew of a UDRP complainant's mark when it registered a confusingly similar domain name, and further finding that that respondent registered the domain name in bad faith).
For these reasons, the Panel finds that Complainant has adequately met its obligations of proof under Policy ¶ 4(a)(iii).
DECISION
Complainant having established all three elements required to be proven under the usTLD Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <risecredit.us> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 16, 2023
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