Equity Wave Lending, Inc. v. Micheal Ard
Claim Number: FA1908001857965
Complainant is Equity Wave Lending, Inc. (“Complainant”), represented by Kailen Locke of Equity Wave Lending, Inc., California, USA. Respondent is Micheal Ard (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <equitywavelendingcash.com>, registered with Name.com, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 19, 2019; the Forum received payment on August 19, 2019.
On August 19, 2019, Name.com, Inc. confirmed by e-mail to the Forum that the <equitywavelendingcash.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. 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 August 26, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 16, 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@equitywavelendingcash.com. Also, on August 26, 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 September 17, 2019 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant operates in the mortgage and real estate lending services industry. Complainant has rights in the EQUITY WAVE mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,756,099, registered May 21, 2019). Respondent’s <equitywavelendingcash.com> domain name is identical or confusingly similar to both Complainant’s EQUITY WAVE mark and Complainant’s legitimate <equitywavelending.com> domain name.
Respondent lacks rights or legitimate interests in the <equitywavelendingcash.com> domain name. Respondent is not authorized or licensed to use Complainant’s EQUITY WAVE mark and there is no evidence to suggest that the Respondent listed in the WHOIS record is commonly known by the disputed domain name.
Respondent registered and uses the <equitywavelendingcash.com> domain name in bad faith because Respondent has engaged in a pattern of bad faith registration as it has a history of past adverse UDRP decisions.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Equity Wave Lending, Inc. (“Complainant”), of Irvine, California, USA. Complainant is the owner of the domestic registration for the mark, EQUITY WAVE, which it registered on May 21, 2019. Complainant asserts a date of first use in commerce of March 2011 but did not file its application for registration until September 2018.
Respondent is Micheal Ard (“Respondent”), of Fort Worth, Texas, USA. Respondent’s registrar’s address is listed as Denver, CO, USA. The Panel notes that the disputed domain name was registered on May 23, 2017, which predates Complainant’s registration of the EQUITY WAVE mark on May 21, 2019.
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”).
Complainant asserts rights in the EQUITY WAVE mark based upon registration with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in the mark pursuant to Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Here, Complainant provides the registration certificate for its trademark (e.g., Reg. No. 5,756,099, registered May 21, 2019). The Panel is aware that it may also determine that the relevant date of rights in a mark relate back to the time of filing. See Micha Advanced Health dba LEMYKA v. Shanshan Huang / This domain name is for sale, FA 1772893 (Forum Apr. 9, 2018) (“The relevant date for acquiring rights in a registered mark is the application filing date.”), Here the application date for the EQUITY WAVE mark is September 24, 2018. The Panel here finds that Complainant has rights in the EQUITY WAVE mark per Policy ¶ 4(a)(i).
Complainant argues Respondent’s <equitywavelendingcash.com> domain name is identical or confusingly similar to both Complainant’s EQUITY WAVE mark and Complainant’s legitimate <equitywavelending.com> domain name. The Panel notes, despite Complainant’s lack of argument on this element, that the relevant analysis pertains to the addition of the generic or descriptive terms “lending” and “cash” as well as the “.com” generic top-level domain to Complainant’s EQUITY WAVE mark. The addition of generic or descriptive terms and a gTLD to a complainant’s mark have been found insufficient to withstand a test of confusing similarity pursuant to Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)); see also The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). The Panel here finds that Respondent’s disputed domain name is identical or confusingly similar to the Complainant’s EQUITY WAVE mark.
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
The Panel here finds that Complainant HAS NOT set forth the requisite prima facie case.
Respondent’s May 23, 2017 domain name registration predates Complainant’s May 23, 2019 registration of its mark by almost exactly two (2) full years. Even if the relevant rights date was the date of filing, September 2018, Respondent’s registration still predates Complainant’s registration. Complainant claims a date of first use in commerce of 2011 but offers no evidence of continuous use of the mark between the 2011-2019 dates. Nor does the Complainant assert any common law rights in the mark during that time. In fact, Complainant says nothing about its business or registered mark other than Complainant is in the lending business and Respondent’s domain name may mislead customers. Nor does Complainant make any assertions regarding Respondent’s use of the domain name. Nothing is said of where the domain name resolves, if at all, and how it is used there, or if not whether it is inactive, parked, or otherwise. There is simply a form complaint filed with brief assertions under each heading leading to a dearth of the type of information required to support a positive finding for the Complainant on this element.
The Complainant has NOT proven this element.
Because the Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(ii), the Panel declines to analyze the remaining element of the Policy. See Netsertive, Inc. v. Ryan Howard / Howard Technologies, Ltd., FA 1721637 (Forum Apr. 17, 2017) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary).
The Panel has not addressed this element.
Because the Complainant has failed to establish all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be DENIED.
Accordingly, it is Ordered that the <equitywavelendingcash.com> domain name REMAIN WITH Respondent.
Darryl C. Wilson, Panelist
Dated: October 1, 2019
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