LoanDepot.com, LLC v. Zhichao Yang
Claim Number: FA2012001924673
Complainant is LoanDepot.com, LLC ("Complainant"), represented by Hani Sayed of Rutan & Tucker LLP, California, USA. Respondent is Zhichao Yang ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ioandepot.com>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 11, 2020; the Forum received payment on December 11, 2020.
On December 14, 2020, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by email to the Forum that the <ioandepot.com> domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. 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 December 17, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 6, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@ioandepot.com. Also on December 17, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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 January 11, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 a nonbank consumer lender in the United States that offers home mortgage, refinance, equity, and personal loan products. Complainant has used the LOANDEPOT and LOANDEPOT.COM trademarks in connection with its services since 2009, and owns United States trademark registrations for these and related marks.
Respondent registered the disputed domain name <ioandepot.com> in May 2020. The domain name is being used for a website consisting of "related links" to websites offering financial services that compete with those offered by Complainant. Complainant states that Respondent is not commonly known by the disputed domain name, is not an authorized provider of Complainant's services, and has never been licensed or otherwise permitted to use any of Complainant's trademarks.
Complainant contends on the above grounds that the disputed domain name <ioandepot.com> is confusingly similar to its LOANDEPOT mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The Panel notes that the Registration Agreement is written in Chinese. Rule 11(a) provides that the language of this administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise. Complainant requests that the proceeding be conducted in English, noting inter alia that the disputed domain name is composed of English-language words and corresponds to the name of a U.S. company, and that it is being used for a website that contains content exclusively in English. In addition, the Panel notes that the Written Notice of the Complaint was served upon Respondent in both English and Chinese, and Respondent has made no objection to Complainant's request that the proceeding be conducted in English; Respondent has been a party to many proceedings under the Policy, most or all of which have been conducted in English, see Transamerica Corp. v. yangzhichao, FA 1775991 (Forum Apr. 27, 2018), and has been found likely to be conversant and proficient in the English language, see, e.g., Chevron Intellectual Property LLC v. Zhichao Yang, FA 1899809 (Forum July 14, 2020); UnitedHealth Group Inc. v. Zhichao Yang, FA 1635392 (Forum Oct. 22, 2015); and Respondent has registered many other domain names composed of English-language words and has done so through registrars with English-language registration agreements, One Technologies, L.P. v. Zhichao Yang, FA 1554290 (Forum June 10, 2014) (78 domain names registered with 5 registrars).
Under the circumstances, the Panel finds it likely that Respondent is conversant in the English language, has received adequate notice of this proceeding, and has chosen not to participate. The Panel sees no reason to require Complainant to bear the burden and expense of arranging for a Chinese translation that is likely unnecessary to afford proper notice to Respondent, and that in any event Respondent is likely to ignore. See Brooks Sports, Inc. v. Liuzhao, FA 1900494 (Forum July 24, 2020) (deciding to conduct proceeding in English in similar circumstances); ALO, LLC v. Chen Jian Shan, FA 1819707 (Forum Jan. 14, 2019) (same). The Panel decides that English shall be the language of this proceeding.
The disputed domain name <ioandepot.com> incorporates Complainant's registered LOANDEPOT and LOANDEPOT.COM trademarks, substituting a letter "i" for the visually similar letter "L" and (in the latter instance) appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's marks. See, e.g., Phillips 66 Co. v. Kelechi Nathan / Philiips 66, FA 1883255 (Forum Mar. 13, 2020) (finding <philiips66.com> confusingly similar to PHILLIPS 66); Oracle International Corp. v. Terence / tellraceheart, FA 1713066 (Forum Feb. 22, 2017) (finding <oracie.com> confusingly similar to ORACLE); loanDepot.com, LLC v. Li Jin Dong, FA 1785835 (Forum June 7, 2018) (finding <loanndepot.com> confusingly similar to LOANDEPOT); loanDepot.com, LLC v. LiJin Dong / Li Jin Dong, FA 1771647 (Forum Mar. 26, 2018) (finding <loanfepot.com> and <loandrpot.com> confusingly similar to LOANDEPOT). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates a variation of Complainant's registered mark without authorization, in an obvious instance of typosquatting, and it is being used to display what the Panel infers to be pay-per-click links to competitors of Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., loanDepot.com, LLC v. Li Jin Dong, FA 1785835, supra (finding lack of rights or interests in similar circumstances); loanDepot.com, LLC v. LiJin Dong / Li Jin Dong, FA 1771647, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered and is using a domain name corresponding to a typographical variation on Complainant mark to generate revenues from pay-per-click links to competitors of Complainant. For the same reasons as those stated in loanDepot.com, LLC v. Li Jin Dong, FA 1785835, supra, and loanDepot.com, LLC v. LiJin Dong / Li Jin Dong, FA 1771647, supra, as well as in most or all of the decisions cited above involving Respondent, the Panel finds that Respondent registered and is using the disputed domain name in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ioandepot.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 12, 2021
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