DECISION

 

Encore Capital Group, Inc. v. Laura Oxley

Claim Number: FA2309002063482

PARTIES

Complainant is Encore Capital Group, Inc. ("Complainant"), California, USA. Respondent is Laura Oxley ("Respondent"), Great Britain.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <encoredebtrecovery.com>, ("the Domain Name") registered with Tucows Domains Inc..

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 26, 2023; Forum received payment on September 26, 2023.

 

On September 27, 2023, Tucows Domains Inc. confirmed by e-mail to Forum that the <encoredebtrecovery.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 October 2, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 23, 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@encoredebtrecovery.com. Also on October 2, 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 formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.

 

On October 24, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

The Complainant is the owner of common law rights in ENCORE for financial services including debt recovery services and has provided evidence of extensive use and secondary meaning since at least 2012. It has owned <encorecapital.com> since 2004.

 

The Domain Name registered in 2021 is confusingly similar to the Complainant's ENCORE trade mark containing it in its entirety and adding the generic term 'debt recovery' and the gTLD .com.

 

To pass itself off as Complainant, Respondent's web site connected with the Domain Name uses the Complainant's logo and ENCORE mark to offer competing debt recovery services. The address for the Domain Name is the same address as a UK Company registration Encore Capital Group Inc Limited registered as a company in 2021 which has not filed its accounts or details of its directors and shareholders and the address leads to a virtual serviced office where no business is transacted by the Respondent. This is not a bona fide offering of services or legitimate noncommercial fair use. It is registration and use in bad faith, diverting internet users for commercial gain and disrupting the Complainant's business in full knowledge of the Complainant's rights. Several reviews of the Respondent's business prove the Respondent takes money for debt collection services and then fails to provide any services after it has been paid.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant is the owner of common law rights in ENCORE for financial services including debt recovery services and has provided evidence of extensive use and secondary meaning since at least 2012. It has owned <encorecapital.com> since 2004.

 

The Domain Name registered in 2021 has been used to offer competing debt recovery services.

 

The address for the Domain Name is the same address as a UK Company registration Encore Capital Group Inc Limited registered as a UK company in 2021 which has not filed its accounts or details of its directors and shareholders and the address leads to a virtual serviced office where no business is transacted by the Respondent. Several reviews of the Respondent's business prove that the Respondent takes money for debt collection services and then fails to provide any services after it has been paid.

 

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:

 

(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").

 

Identical and/or Confusingly Similar

The Domain Name consists of the Complainant's ENCORE mark (in which the Complainant owns common law rights in the USA for financial services with extensive use and secondary meaning evidenced since at least 2012), the generic term 'debt recovery' and the gTLD .com.

 

The addition of a generic term and a gTLD does not negate confusing similarity between a domain name and a trade mark contained within it. See Wiluna Holdings LLC v Edna Sherman, FA 1652781 (Forum Jan 22, 2016)(Finding the addition of a generic term and gTLD insufficient to distinguish a disputed domain name from a mark under Policy 4 (a) (i).)

 

Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.

 

Rights or Legitimate Interests

The Complainant has not authorised the use of its mark. There is no evidence to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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 use of the web site is commercial so is not legitimate noncommercial fair use.

 

The web site attached to the Domain Name uses the Complainant's ENCORE mark and its logo to purport to offer competing debt recovery services, but then fails to provide such services. As such this use cannot amount to the bona fide offering of goods and services. (See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.) see also Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) ("Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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 DaVita Inc. v Cynthia Rochelo FA 1738034 (Forum July 20, 2017) finding that 'Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate non commercial or fair use').

 

The Respondent has not answered this Complaint or offered any explanation or evidence to rebut the prima facie case evidenced by the Complainant herein.

 

As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

As found above, the use made of the Domain Name in relation to the Respondent's site is confusing, deceptive and disruptive as it uses the Complainant's ENCORE mark and logo to offer competing and likely fraudulent debt recovery services. The use of the Complainant's logo shows the Respondent has actual knowledge of the Complainant, its rights, business and services.

 

Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to her website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the Complainant. (See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use). See Allianz of AM. Corp v Bond, FA 680624 (Forum June 2, 2006)(finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website). See MySpace, Inc. v. Myspace Bot, FA 672161 (Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant's website to its own website for commercial gain because the respondent likely profited from this diversion scheme).

 

Diverting Internet users for commercial gain and impersonating a complainant by use of a complainant's mark and logo in a fraudulent phishing scheme is confusing and disruptive and evinces bad faith registration and use.  See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith 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.").

 

As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <encoredebtrecovery.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Dawn Osborne, Panelist

Dated: October 25, 2023