KMD Partners, LLC v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1910001867566
Complainant is KMD Partners, LLC (“Complainant”), represented by Michael A. Marrero of Ulmer & Berne, LLP, Ohio, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ninja-credit.com>, registered with Internet Domain Service BS Corp.
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.
Hon. Karl v. Fink (Ret.) as Panelist
Complainant submitted a Complaint to the Forum electronically on October 18, 2019; the Forum received payment on October 18, 2019.
On October 22, 2019, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <ninja-credit.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the 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 October 22, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 12, 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@ninja-credit.com. Also on October 22, 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 November 13, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 is an Illinois limited liability company that has offered consumer loans since 2018. Complainant has rights in the CREDITNINJA mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,846,273, registered Aug. 27, 2019; filed Dec. 29, 2017). Respondent’s <ninja-credit.com> domain name is confusingly similar to Complainant’s CREDITNINJA mark as it incorporates the mark in its entirety, merely transposing the terms within the mark, adding a hyphen and a “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <ninja-credit.com> domain name. Respondent is not licensed or authorized to use Complainant’s CREDITNINJA mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to provides leads for and links users to Complainant’s competitors, presumably for commercial gain. Furthermore, Respondent likely uses the disputed domain name in connection with a phishing scheme.
Respondent registered and uses the <ninja-credit.com> domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name by featuring pay-per-click links to Complainant’s competitors. Respondent also uses the disputed domain name to redirect users to an unsecure website as part of a phishing scheme. Finally, Respondent failed to respond to Complainant’s cease and desist letter.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds, from Complainant’s uncontested allegations and evidence, that Complainant is entitled to the requested relief of transfer of the <ninja-credit.com> domain name.
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 claims rights in the CREDITNINJA mark based upon registration of the mark with the USPTO (e.g., Reg. No. 5,846,273, registered Aug. 27, 2019; filed Dec. 29, 2017). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The relevant date of rights in a registered mark may extend back to the date of filing. See ADP, LLC v. Dennis Shifrin / Streamline, FA 1732114 (Forum June 13, 2017) (holding that “the relevant date for Complainant’s mark is the filing date.”). The Panel finds that Complainant’s registration of the CREDITNINJA mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant next argues Respondent’s <ninja-credit.com> domain name is confusingly similar to the CREDITNINJA mark, as the name incorporates the mark in its entirety, merely transposing the terms within the mark, adding a hyphen and a “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Bloomberg L.P. v. Herrington Hart, NIRT, FA 464790 (Forum June 1, 2005) (“The Panel finds that the use of transposed words, similar to transposed letters does not suffice to differentiate the disputed domain name from Complainant’s mark to create a separate and distinct mark.”); see also ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug, 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”). The Panel finds that the <ninja-credit.com> domain name is confusingly similar to the CREDITNINJA mark per Policy ¶ 4(a)(i).
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 finds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <ninja-credit.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the CREDITNINJA mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record identifies the registrant of the at-issue domain name as “Domain Admin / Whois Privacy Corp.,” and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <ninja-credit.com> domain name.
Complainant further argues Respondent’s lack of rights or legitimate interests in the <ninja-credit.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends instead that the name resolves to a website which is being used to obtain click-through revenue by linking to third-party websites, some of which compete with Complainant’s business. Use of a domain name to link to a complainant’s competitors is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Complainant contends the domain name resolves to a website that leads and links users to third-party websites that offer consumer loans. The Panel finds that Respondent does not have rights or legitimate interests in respect of the <ninja-credit.com> domain name.
Complainant further argues that Respondent’s lack of rights or legitimate interests in the <ninja-credit.com> domain name is demonstrated by its use of the domain name to redirect users to an unsecure website, presumably in furtherance of a phishing scheme. Use of a disputed domain name to obtain users’ personal or sensitive information is not indicative of any rights or legitimate interests under Policy ¶¶ 4(c)(i) or (iii). See United States Postal Service v. Kehinde Okunola / Genuine ICT Centre, FA 1785420 (Forum June 6, 2018) (“Respondent uses the <uspscouriers.com> domain name both to sell services competing with the business of Complainant and to phish for personal identification information from Internet users. Neither of these uses of the domain name constitutes 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) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy.”). Complainant contends that Respondent’s domain name’s resolving website is littered with language, such as “Secure and Safe,” and features the names and logos of third party security providers. Complainant further argues that the domain name contains a section where users’ provider their personal information, including their social security number. The Panel finds that Respondent lacks rights or legitimate interests in respect of the disputed domain name per Policy ¶¶ 4(c)(i) or (iii).
Complainant also contends that Respondent’s bad faith is indicated by its use of the <ninja-credit.com> domain name to link to third party websites, some of which compete with Complainant’s business. Use of a domain name to resolve to a page of third-party links, including competitive links, can demonstrate a respondent’s bad faith per Policy ¶ 4(b)(iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”). Complainant contends the domain name resolves to a webpage displaying links to third party websites, some of which belong to competitors of Complainant. This is evidence that Respondent has registered and uses the domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant further argues that Respondent’s bad faith is demonstrated by its use of the <ninja-credit.com> domain name to redirect users to an unsecure website, presumably for phishing purposes. Use of a disputed domain name to trick users into providing sensitive or personal information may demonstrate bad faith under Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”). Complainant argues that Respondent’s domain name’s resolving website is littered with language, such as “Secure and Safe,” and features the names and logos of third party security providers. Complainant further argues that the domain name contains a section where users’ provider their personal information, including their social security number. The Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <ninja-credit.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
November 18, 2019
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