Aspen Financial Solutions, Inc. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1905001841599
Complainant is Aspen Financial Solutions, Inc. (“Complainant”), represented by Bassam N. Ibrahim of Buchanan Ingersoll & Rooney PC, Pennsylvania, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain names at issue are <aspenfinancialdirectloans.com>, <aspenfinancialdirectcash.com>, <aspendirectloans.com>, and <aspenfinanceloans.com> (‘the Domain Names’), registered with Internet Domain Service BS Corp.
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 2, 2019; the Forum received payment on May 2, 2019.
On May 7, 2019, Internet Domain Service Bs Corp.; Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <aspenfinancialdirectloans.com>, <aspenfinancialdirectcash.com>, <aspendirectloans.com>, and <aspenfinanceloans.com> domain names are registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the names. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service Bs Corp.; Internet Domain Service BS Corp 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 May 7, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 28, 2019 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@aspenfinancialdirectloans.com, postmaster@aspenfinancialdirectcash.com, postmaster@aspendirectloans.com, postmaster@aspenfinanceloans.com. Also on May 7, 2019, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On May 30, 2019 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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 Names be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Domain Names are registered using the same contact information and name servers with the same registrant/registrar, feature the same or similar content and layout, naming pattern and have been advertised in the same way. The case should be consolidated against all four Domain Names.
Since at least May 2018 the Complainant has made extensive use of the ASPEN FINANCIAL DIRECT mark for financial loan services. It owns aspenfinancialdirect.com.
The Domain Names (registered at the end of 2018 or the beginning of 2019) are confusingly similar to the distinctive part of the Complainant’s mark incorporating it in its entirety and adding only generic terms and the gTLD “.com.”
Respondent does not have any rights or legitimate interests in the Domain Names, is not commonly known by the Domain Names and has not been authorized by the Complainant.
The Domain Names have been used to offer financial loan services not connected with the Complainant including the use of the Complainant’s exact domain name aspenfinancialdirect.com on the content of websites and in advertising to pass the Respondent’s services off as those of the Complainant. This cannot be a bona fide offering of goods or services and is commercial so cannot be a non-commercial legitimate fair use. It is registration and use in bad faith to divert Internet users for commercial gain and disrupting the Complainant’s business. The use of the Complainant’s exact domain name on Respondent’s sites show actual knowledge of the Complainant and its business. It is a naming pattern designed to usurp the Complainant’s goodwill.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Since at least May 2018 the Complainant has made extensive use of the ASPEN FINANCIAL DIRECT mark for financial loan services and is the owner of common law rights in that mark. It owns aspenfinancialdirect.com.
The Domain Names were registered after the Complainant began using its mark for loan services and have been used for competing services which are unconnected to the Complainant using references to the Complainant’s domain name aspenfinancialdirect.com.
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”).
Preliminary Issue – Consolidation of Complaints
The Panelist agrees that the Complainant has shown on the balance of probabilities due to the similar content and use of the material attached to the Domain Names that they have been registered by the same entity or entities with a business connection and agrees that they appear to be under common control. As such consolidation of the complaints against the Domain Names into this Complaint is fair and equitable in the circumstances.
Identical or Confusingly Similar
The Domain Names are confusingly similar to the distinctive part of the Complainant’s ASPEN FINANCIAL DIRECT mark (which has been used for financial services with first use recorded as May 2018 giving rise to common law rights) adding only generic terms common in financial services and the gTLD “.com” which do not prevent confusing similarity between the Domain Names and the Complainant’s mark.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic terms in the Domain Names to a sign similar to the Complainant's mark does not prevent confusing similarity between the Domain Names and the Complainant's trade mark pursuant to the Policy.
The gTLD “.com” does not serve to distinguish a domain name from a Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Names are confusingly similar to the Complainant’s ASPEN FINANCIAL DIRECT mark.
As such, the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. There is no evidence or reason to suggest the Respondent is 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).
It is clear from the evidence that the Respondent has used the site attached to the Domain Name for competing financial services which are not connected with the Complainant. The usage of signs confusingly similar to the Complainant’s ASPEN FINANCIAL DIRECT mark which has a reputation for financial services in relation to similar services not connected with the Complainant is not fair as the site does not make it clear that there is no commercial connection with the Complainant and, in fact, uses the Complainant’s actual domain name in the content of sites; as such, it cannot amount to the bona fide offering of services or a noncommercial legitimate or fair use. 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 advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services).
The Respondent has not answered this Complaint and has not provided any legitimate reason why it should be able to use the Complainant’s trade mark in this way. As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the Panelist, the use made of the Domain Names in relation to the Respondent’s sites is confusing and disruptive in that visitors to the sites might reasonably believe they are connected to or approved by the Complainant as it uses the Complainant’s mark and references to the Complainant’s domain name to offer competing financial services without permission. References to the Complainant’s domain name show that the Respondent is aware of the Complainant and its business. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its websites by creating likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site 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 advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use); see also 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).
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)(iv) and 4(b)(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 <aspenfinancialdirectloans.com>, <aspenfinancialdirectcash.com>, <aspendirectloans.com>, and <aspenfinanceloans.com> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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